J-A22035-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TOMA MARTIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1530 WDA 2021

Appeal from the Judgment of Sentence Entered November 30, 2021

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0002196-2020

BEFORE: OLSON, J., DUBOW, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED: JANUARY 04, 2023

Toma Martin appeals from the judgment of sentence imposed following 

a non-jury trial wherein she was found guilty of possessing a controlled 

substance, possessing/distributing a small amount of marijuana, and 

possessing/using drug paraphernalia.1 For these offenses, Martin was 

sentenced to an aggregate one-year probation term. On appeal, Martin dually 

challenges whether the lower court erred by denying her suppression motion 

and whether there was sufficient evidence to support her convictions. After a 

thorough review of the record, we affirm.

As cogently summarized by the lower court:

[O]n September 8th of 2019[,] Mt. Lebanon Police 

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 See 35 P.S. § 780-113(a)(16); 35 P.S. § 780-113(a)(31); 35 P.S. § 780-

113(a)(32), respectively.
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Department received an assistance call from Washington County 

regarding [a] theft and assault that occurred in Washington 

County, [that County] being a contiguous and neighboring county 

with Allegheny[.]

In any event, Office[r] Daniel McBride of the Mt. Lebanon 

Police Department, who had experience [as] of the date of this

offense, approximately ten years[‘] experience both in Ocean City, 

Maryland[,] and the last four with Mt. Lebanon[;] he has 

experience involving hundreds of drug citations and/or 

investigations including identification and investigation of heroin, 

marijuana, cocaine, [e]cstasy and MDMA.

As he was working a shift on September 8, 2019[,] he 

received a call from his superiors and/or dispatch regarding 

assistance as to the alleged theft and assault in Washington 

County. He was contacted by [one] Lieutenant Sober regarding 

that assist[ance] request and information thereto. The report that 

he received [was] that there were two females who were involved 

in that theft and assault of a male in Washington County. One of 

them was [eventually identified as] the [d]efendant in this case, 

Toma Martin, and the belief was that ... Martin was a resident of 

Mt. Lebanon.

The request to follow up confirmed that ... Martin was a 

resident of Mt. Lebanon living in Apartment 401 at 100 Academy 

Avenue. There was also information that the vehicle involved in 

this incident in Washington County was a red Jeep and the object 

or subject of the theft was clothing, a shoe article, Nike athletic 

shoes, as well as Suboxone strips [taken] from the victim.

Officer McBride proceeded to 100 Academy Avenue where 

he was met by a fellow officer, Officer Rutowski. When they 

arrived at 100 Academy Avenue, which is an apartment building, 

the officers immediately noticed that there was a red Jeep parked 

in front of the apartment building and it was registered to a female 

named Jessica.

The officers looked through the windows of the Jeep and 

they saw the described pair of black Nike sneakers in the vehicle. 

They did not notice at that juncture any Suboxone strips. The 

officers went up to Apartment 401 and knocked on the door in an 

attempt to contact ... Martin or Jessica, the owner of the red Jeep. 

The officers approached the door, and before they knocked on the 
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door, they could hear voices inside the apartment, at least one 

male and at least one female voice inside the apartment. They 

knocked on the door multiple times over the course of a couple 

minutes without response. 

There was a body cam[era] video introduced as 

Commonwealth’s Exhibit No. 1 that substantially corroborated 

Police Officer McBride’s account of the events. [The officers] heard 

the voices and muffled sounds inside even after they were 

knocking. Eventually the door was opened by ... Martin and 

immediately the officers noticed an overwhelming odor of burnt

marijuana emanating from the apartment as soon as the door was 

open.

The officers started to make inquiry of ... Martin instructing 

her to leave the door open for their safety as well as the marijuana 

emanating from the apartment and also the evanescent nature of 

the Suboxone strips. ... Martin was evasive and actually lied to the 

police officers about the number ... of persons in the apartment 

indicating that the only other person in the apartment building ... 

was a female. [Martin] was nervously looking over her shoulder 

during the course of this conversation.

The officers wanted to have the door open to make sure that 

nothing else was going on at the time in the apartment. They 

wanted to speak to her about potentially giving her consent to 

search the apartment and also to make certain that no evidence 

was destroyed if, in fact, the door was closed as they stood in the 

hallway. The apartment building itself was a known source of 

complaints for drug activity over the years, which [was] also a 

concern for Officer McBride. [These events transpired at] 

approximately 1:18 in the morning . . . . [Martin] acknowledged 

during the course of [her] contact [with police officers] that she 

was not only the leaseholder but the sole occupant [of that specific 

apartment].

At this juncture there was entry into the apartment and the 

officers found two individuals in the bedroom. [Therefore,] in 

addition to ... Martin, there were three other persons[] present 

including Jessica, the owner of the red Jeep [who was also] a 

potential suspect from the events in Washington County.

The officers removed everyone from the apartment during 

the course of their protective sweep. There was one bedroom, a 
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living room-kitchen combination and of course a bathroom and 

shower. During the protective sweep they noticed a cannister of 

marijuana in plain view near the mattress in the living room floor. 

It should be noted that the apartment was very sparsely 

furnished, and in addition to the bedroom, the mattress on the 

living room floor was basically the only other furniture.

The protective sweep was completed and they waited for 

other officers to arrive. Officer McBride began speaking with 

Jessica, who acknowledged that she was the owner of the vehicle 

outside. Jessica did indicate that she knew the victim who had 

called in the complaint. She acknowledged that they could recover 

the shoes from the vehicle and they did. She also acknowledged 

that she didn’t know if the Suboxone was in there, but she did 

consent to a search of the vehicle ... which was completed and the 

shoes were retrieved but no Suboxone. 

During this period of time ... Martin was secured in the 

hallway outside the apartment with the officers again noting that 

after the protective sweep that ... Martin and Jessica, as well as 

the two others, were removed from the apartment into the 

hallway.

The apartment being secured, the quick conversation [with] 

Jessica and in search of the red Jeep being completed[,] the 

officer, that is Officer McBride, went on to address the issue of the 

Suboxone and the marijuana that were still outstanding. It was 

explained to [Martin] that they were going to get a search warrant 

for the apartment, but she did have the opportunity to consent. 

She initially refused to consent, but upon further reflection she 

decided that she would consent to the search of the apartment. A 

formal consent to search form was executed by [Martin] which 

was introduced into evidence as Commonwealth’s Exhibit No. 2. 

The execution included, of course, her signature and that was 

approximately at 2:00 a.m.

[Ultimately, v]arious items, drug paraphernalia and drugs 

themselves as charged in the indictment were located in [Martin’s] 

apartment . . . .

Trial Court Opinion, 3/7/22, at 6-9 (quoting the findings of fact and 

conclusions of law as determined by the suppression court) (most brackets 
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added).

After being charged, initially, with five drug-related crimes, Martin 

challenged the bases by which police officers were able to gain access to and 

search the at-issue apartment without a warrant. Through its subsequent

denial of Martin’s suppression motion, the court found that 

the court of conduct by the police responding to the request from 

authorities and Washington County was appropriate and that their 

conduct and investigation was reasonable and expected. The 

[c]ourt also [determined] that their conduct, once they were at 

the residence by knocking trying to secure further information to 

advance the investigation was appropriate and reasonable, and 

once the door would be open to the apartment, they were 

overwhelmed by the odor of burnt marijuana, that the intrusion in 

this incident for officers’ safety and the evanescent nature of both 

marijuana and unaccounted for Suboxone strips was reasonable 

[in] not letting ... Martin shut the door and as events unfolded and 

eventually secured her consent during that relatively short period 

of time[.]

Id., at 9-10.

After being found guilty of the three aforementioned offenses by way of 

non-jury trial, Martin, following sentencing, filed a timely notice of appeal. The 

relevant parties have complied with their obligations under Pennsylvania Rule 

of Appellate Procedure 1925, and as such, this matter is ripe for review.

On appeal, Martin challenges:

1. Whether the lower court erred in denying her motion to 

suppress, as officers executed an illegal search of her resident 

without a warrant, exception, or probable cause.

2. Whether the evidence was sufficient to support her convictions, 

as contraband was accessible to other persons in the residence

and constructive possession had not been proven.
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Appellant’s Brief, at 5.

Martin’s first issue contests the court’s denial of her suppression motion. 

In this domain, the standard we apply and scope of review we employ are 

well-settled:

Our standard of review in addressing a challenge to a trial court's 

denial of a suppression motion is whether the factual findings are 

supported by the record and whether the legal conclusions drawn 

from those facts are correct. When reviewing the ruling of a 

suppression court, we must consider only the evidence of the 

prosecution and so much of the evidence of the defense as 

remains uncontradicted when read in the context of the record. 

Where the record supports the findings of the suppression court, 

we are bound by those facts and may reverse only if the legal 

conclusions drawn therefrom are in error.

Commonwealth v. Heidelberg, 267 A.3d 492, 498-99 (Pa. Super. 2021) 

(en banc) (citation omitted).

Distilled down, Martin contends that, given that police officers had no 

search warrant that would have allowed them access to the apartment, their 

initial physical entry into the residence constituted an unconstitutional search 

that was, too, unsupported by any exception to the Fourth Amendment’s 

warrant requirement. As such, anything recovered following that discrete 

event was illegally obtained and therefore inadmissible. 

In contrast, the Commonwealth asserts that a warrantless search was 

justified because: (1) there were exigent circumstances associated with what 

the police officers interpreted as an “imminent destruction of evidence” risk 

posed by, inter alia, the Suboxone contraband, which, after observing the Nike 

shoes located in the Jeep, were likely to be located on site; (2) officers were 
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concerned with their safety as they had heard more people in the apartment 

than Martin had indicated, and relatedly, Martin did not fully present herself 

at the door to converse with them, acting nervous throughout the interaction; 

and (3) there was an overwhelming smell of marijuana emanating from the 

apartment. In addition, Martin signed a form consenting to a search of her 

apartment. See Appellee’s Brief, at 20. 

The United States Constitution’s Fourth Amendment establishes that 

people have a right to not be the subject of unreasonable searches and 

seizures. See U.S. Const. Amend. 4 Generally, a warrant predicated on 

probable cause is necessary to effectuate such a search and/or seizure. See 

id.; see also Pa. Const. Art. 1, § 8. While exceptions to the warrant 

requirement exist, they are quite narrow in scope and applicability. As applied 

here:

[i]n a private home, searches and seizures without a warrant are 

presumptively unreasonable[.] Absent probable cause and exigent 

circumstances, the entry of a home without a warrant is prohibited 

under the Fourth Amendment. In determining whether exigent 

circumstances exist, a number of factors are to be considered[:] 

(1) the gravity of the offense, (2) whether the suspect is 

reasonably believed to be armed, (3) whether there is above and 

beyond a clear showing of probable cause, (4) whether there is 

strong reason to believe that the suspect is within the premises 

being entered, (5) whether there is a likelihood that the suspect 

will escape if not swiftly apprehended, (6) whether the entry was 

made peaceably, and (7) the time of the entry, i.e., whether it 

was made at night. These factors are to be balanced against one 

another in determining whether the warrantless intrusion was 

justified. Other factors may also be taken into account, such as 

whether there is hot pursuit of a fleeing felon, a likelihood that 

evidence will be destroyed if police take time to obtain a warrant, 

or danger to police or other persons inside or outside the dwelling. 
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Nevertheless, police bear a heavy burden when attempting to 

demonstrate an urgent need that might justify warrantless 

searches or arrests.

Commonwealth v. Bostick, 958 A.2d 543, 557 (Pa. Super. 2008) (citation 

omitted) (bracket in original); see also Commonwealth v. Barr, 266 A.3d 

25, 40 (Pa. 2021) (“[T]he police may conduct a warrantless search of a home 

if they have probable cause to believe that contraband or evidence of a crime 

will be found in the home and exigent circumstances are present.”) (citation 

omitted). Effectively, given the fact-specific nature of these types of inquiries, 

a totality of the circumstances approach is necessary to demonstrate whether 

an exigency, in fact, exists. See Commonwealth v. Trahey, 228 A.3d 520, 

530 (Pa. 2020). 

Martin spends much of her brief discussing the enactment of the Medical 

Marijuana Act (MMA), see 35 P.S. §§ 10231.101-10231.2110, which permits 

the possession and use of marijuana under enumerated circumstances for

those who are certified and have received a valid identification card. Martin 

then discusses the MMA’s impact on constitutionally permissible searches. 

Specifically, in Barr, our Supreme Court determined, in the context of 

automobile searches, that “the smell of marijuana may be a factor, but not a 

stand-alone one, in determining whether the totality of the circumstances 

established probable cause to permit a police officer to conduct a warrantless 

search of a vehicle.” 266 A.3d at 28. As Martin concedes, Barr does not 

“specifically address warrantless searches for marijuana as it pertains to a 
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residence[.]” Appellant’s Brief, at 17. However, Martin believes that pursuant 

to Barr, officers, prior to conducting a warrantless search of a residence and 

in the absence of exigent circumstances, should be required to ask a resident’s 

occupants if “they are valid MMA patients immediately upon the smell of 

marijuana.” Id. Such an interrogatory did not happen here.

In addition to the MMA-based averments, Martin collates the order of 

events to demonstrate that there was no exigency that would have allowed 

the police officers to circumvent the warrant requirement. In particular, Martin 

describes that: (1) officers arrived in the middle of the night with ambiguously 

sourced information about crimes that occurred in another county on an 

unspecified date; (2) officers encountered Martin despite limited facts 

underpinning her actual involvement in those extra-jurisdictional crimes; (3) 

despite finding the stolen shoes in a vehicle outside of the residence, no 

warrant was sought to recover those pieces of clothing; (4) officers did not 

announce themselves as police officers concurrent with knocking on the 

apartment’s door; and (5) officers, themselves, created a hostile situation 

when the one officer stuck his foot inside of the apartment’s door entrance 

after Martin had indicated she did not wish to speak with them anymore. See

id., at 18-19.

Preliminarily, we note that, to the extent Martin argues that marijuana 

smell provided the sole reason for police officer’s warrantless entry into the 

apartment, such a contention is refuted by the record. While the marijuana 
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smell may have had some relevancy to the officers’ operations, the record 

unambiguously reflects that the officers “believed that if [Martin] would shut 

[the apartment’s] door, any evidence that would be in there could have been 

destroyed by the time [they] came back with a search warrant.” Suppression 

Hearing, 10/18/21, at 36. Moreover, the police officers “knew that there 

[were] additional individuals in the apartment. [The police officers] knew that 

one of them was a male based on hearing him. [They] knew [Martin] was lying 

about the amount of people in the apartment.” Id. 

More importantly, however, despite highlighting the police officers’

actions that seemingly provide credence to her contention that a search 

warrant was necessary, Martin fails to present any authority, either factually 

similar or by analogy, establishing that the stolen Suboxone strips, which the 

court explicitly determined to be “evanescent” and potentially destructible, 

Trial Court Opinion, 3/7/22, at 11, are incapable of establishing an exigency

situation. Reading between the lines, the concern was, by both police officers 

at the time and the court when determining suppression, that these types of

strips, when considered in tandem with how events unfolded that evening,

were easily capable of being flushed down the toilet or destroyed in some 

other way. Despite this oversight, Martin appears to ascribe no relevance to

those strips whatsoever, exclusively focusing on the other item stolen from 

Washington County: shoes. See Appellant’s Brief, at 18 (“Although 

[o]fficers[’] initial investigation concluded with their discovery of the vehicle 
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described in the information received by them and located the essential items 

(Nike shoes) claimed from the alleged victim . . . .”) (emphasis added).

There were clearly two distinguishable items that underpinned why the 

police were at the apartment that evening, and police officers knew, prior to 

arriving, both Martin’s name and that a red Jeep was involved. When they

obtained Martin’s address and thereafter saw, via plain view, the shoes in that 

red Jeep, but were unable to see whether there were Suboxone strips in that 

same location, it would appear reasonable that police officers continued on in 

their endeavor and attempt to glean, from Martin and/or the Jeep’s owner, 

more information about the Washington County crimes. Upon making this 

contact at the front door of the apartment, when the police officers attempted 

to speak with Martin, she acted evasively and recurrently looked over her 

shoulder. Easily, these types of body movements could have been construed 

as signals to others in the apartment to destroy the illicitly obtained Suboxone 

strips, forming the basis of an exigency, or that she was considering a quick 

break from the interaction with police officers in order to facilitate the same. 

With police officers having probable cause to believe that the Suboxone 

strips, either as contraband or evidence of a crime, would likely be contained 

within the apartment, established through known police channels specifically 

identifying Martin and corroborated by the presence of the stolen shoes/red 

Jeep, and when coupled with both the easily disposed-of nature of those strips

and Martin’s anxious movements, a warrantless search, based on a totality of 
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the circumstances analysis, was permissible under those specific 

circumstances. Furthermore, while Barr prohibits vehicular searches based 

solely on the odor of marijuana, even if we were to apply the same holding to 

residence searches, because marijuana “remains illegal to smoke,” 266 A.3d 

at 41, the implication that Martin possessed smokable marijuana, at an 

apartment leased in her name, when considered in the context of her furtive 

movements and untruthfulness, well-exceeds an exclusive reliance on the 

smell alone. Marijuana, too, was considered by the lower court to be easily 

destructible, therefore, in this situation, requiring immediate action – an 

exigency. Although police officers carry a heavy burden in establishing that no 

warrant was needed to conduct a search of this nature, without any discussion 

relevant to one of the principal reasons why the court denied suppression, i.e., 

the destructibility of contraband/evidence of a crime, there is simply no clear 

reason to overturn the court’s ruling in this regard.

Similarly, other than baldly claiming that no exigencies existed, Martin 

provides no analytical discussion on anything that is relevant to the protective 

sweep proffered by the Commonwealth as another exception to the warrant 

requirement. That sweep stemmed, at least in part, from the additional, yet 

unacknowledged, individuals heard in the apartment by the police officers, 

which was juxtaposed against Martin lying to the police as to how many people 

were there. We note, however, that Martin does not appear to have been 

arrested at the time of the officers’ entrance into the apartment. See 
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Maryland v. Buie, 494 U.S. 325, 327 (1990) (defining a protective sweep as 

“a quick and limited search of premises, incident to an arrest and conducted 

to protect the safety of police officers or others[]”) (emphasis added). 

Accordingly, primarily due to Martin’s lack of direct challenge to the 

court’s explicit findings that: (1) both the Suboxone strips and marijuana were 

easily capable of destruction; and (2) Martin’s affect/lying when coupled with 

police officers hearing unaccounted-for people in the apartment, we see no 

strong basis to reverse the suppression court’s finding that a warrant was not 

necessary to enter the apartment. As such, the lower court did not err by 

denying her motion to suppress.

In Martin’s second issue, she avers that the evidence was insufficient to 

find her guilty of the crimes in which she was convicted. Specifically, Martin 

challenges whether she, in fact, “possessed” contraband. Despite conceding 

that she was the leaseholder of the apartment, Martin identifies that she was 

“not found in possession of any contraband” and “three other people were 

located inside [of the apartment], two of whom, a male and female, were 

found alone in the rear bedroom hiding underneath blankets where police 

recovered the heroin, marijuana, and drug use paraphernalia.” Appellant’s 

Brief, at 20. Moreover, one of the people in the apartment “admitted to being 

a drug user.” Id. 

As with all sufficiency of evidence claims, we utilize a well-established 

standard of review:
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In reviewing a sufficiency of the evidence claim, we must 

determine whether the evidence admitted at trial, as well as all 

reasonable inferences drawn therefrom, when viewed in the light 

most favorable to the verdict winner, are sufficient to support all 

elements of the offense. Commonwealth v. Moreno, 14 A.3d 

133 (Pa. Super. 2011). Additionally, we may not reweigh the 

evidence or substitute our own judgment for that of the fact 

finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 

2009). The evidence may be entirely circumstantial as long as it 

links the accused to the crime beyond a reasonable doubt. 

Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

Essentially, Martin’s challenge is limited to whether the Commonwealth 

adequately demonstrated that she constructively possessed the items she was 

ultimately found guilty of possessing, i.e., drugs and drug paraphernalia.

Where possession is an element of the offense, the concept of 

constructive possession is a legal fiction used to prove the element 

although the individual was not in physical possession of the 

prohibited item. The evidence must show a nexus between the 

accused and the item sufficient to infer that the accused had the 

power and intent to exercise dominion and control over it. 

Dominion and control means the defendant had the ability to 

reduce the item to actual possession immediately or was 

otherwise able to govern its use or disposition as if in physical 

possession. Constructive possession can be established by 

inferences derived from the totality of the circumstances.

Commonwealth v. Peters, 218 A.3d 1206, 1209 (Pa. 2019) (citations 

omitted).

First, we note that the argument portion of this issue in Martin’s brief

spans approximately five sentences, and while she has briefly described what 

constructive possession is, she has not provided any authority that reflects

any kind of analysis as to why, here, constructive possession has not been 
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proven. Instead, it appears that Martin is implicitly trying to show that others 

located in the apartment were the ultimate possessors of the illicit items that 

were recovered. 

Second, we highlight the lower court’s determination on this issue:

although other individuals were located in the residence upon the 

police arriving and conducting their protective sweep and that the 

items in question were not found on [Martin’s] person, the record 

clearly supported that given [Martin] was the leaseholder, her 

statements regarding being the only person staying in the 

residence, and her admission as to what would be found during 

the search all supported that there was sufficient evidence to show 

she had access and the ability to exercise dominion and control 

over the items recovered.

Trial Court Opinion, 3/7/22, at 15 (citation omitted).

At the suppression hearing, one of the police officers stated that Martin 

had “indicated that there would be some paraphernalia in the apartment. 

Some needles. Hypodermic syringes.” Suppression Hearing, 10/18/21, at 25. 

In addition, it is unrefuted that Martin was the exclusive leaseholder of the 

apartment. See id., at 26. The items Martin was convicted of possessing were 

“located in various areas [of the apartment]. Drug paraphernalia was in the 

kitchen and the bathroom. And the majority of the items that were recovered 

were from the rear bedroom of the apartment.” Id. 

Given that constructive possession may be inferentially determined 

predicated on the totality of the circumstances, we see no reversable basis to 

conclude that Martin, given her unfettered access to her own apartment and 

the multiple locations the contraband were found, had anything other than the 
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ability to exercise dominion and control over the items she was ultimately 

found guilty of possessing. In addition, the fact that others were present in 

the apartment does not, by itself, shield her from a constructive possession 

determination. See, e.g., Commonwealth v. Johnson, 26 A.3d 1078, 1094 

(Pa. 2011) (establishing that multiple people may be in constructive 

possession of the same contraband where that item is in an area that is jointly 

controlled and equally accessible). Effectively, with contraband being found all 

over her apartment, in places she inherently or logically accessed daily, there 

was sufficient circumstantial evidence to conclude that she constructively 

possessed the items that were recovered. Accordingly, Martin’s challenge to 

the sufficiency of the evidence necessarily fails.

For the reasons outlined, we deny both of Martin’s claims and affirm her 

judgment of sentence.

Judgment of sentence affirmed. 

Judge Olson joins this memorandum.

Judge Dubow concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/04/2023