J-S61036-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

GARY LEE JOSLYN, JR.,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 307 MDA 2015

Appeal from the Judgment of Sentence Entered September 11, 2014, 

in the Court of Common Pleas of Bradford County, 

Criminal Division, at No.: CP-08-CR-0000167-2014

BEFORE: PANELLA, WECHT, and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 30, 2015

Gary Lee Joslyn, Jr., (Appellant) appeals from the judgment of 

sentence entered following his conviction for possession of a controlled 

substance. We affirm.

On June 24, 2014, Appellant was convicted of the aforementioned 

crime following a jury trial. Appellant’s conviction resulted from an incident 

wherein police officers, while executing an arrest warrant for Appellant at a 

residence in Towanda, Pennsylvania, found two plastic baggies containing 

residue from bath salts1on a nightstand next to where Appellant was found 

 

1

“‘Bath salts,’ the street name of a category of designer drugs that contain 

synthetic cathinones such as mephedrone, have ... been designated a 

controlled substance.” Commonwealth v. Scott, 73 A.3d 599, 601 n.5 

(Pa. Super. 2013) (citing 35 P.S. § 780-104(1)(iii)(17-25), (vii)(1-8), 

(viii)(1-9)); see also N.T., 6/24/2014, at 42-43 (Jennifer J. Libus, Forensic 

Scientist II with the Pennsylvania State Police, explaining that testing of the 
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sleeping with his girlfriend and an infant. Appellant was sentenced to four to 

twelve months of incarceration for the conviction. Following the denial of his 

post-sentence motions, Appellant timely filed his notice of appeal to this 

Court.

On appeal, Appellant presents one issue for our consideration: 

“Whether the evidence was sufficient to prove the ability and intent to 

exercise conscious control in order to prove the offense of possession of a 

controlled substance?” Appellant’s Brief at 7.

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. 

 

residue revealed the presence of two Schedule I controlled substances 

known as bath salts).
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Further, in viewing the evidence in the light most favorable to 

the Commonwealth as the verdict winner, the court must give 

the prosecution the benefit of all reasonable inferences to be 

drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (citation 

omitted).

The statute under which Appellant was convicted provides, in relevant 

part, as follows:

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

Commonwealth are hereby prohibited:

***

(16) Knowingly or intentionally possessing a controlled or 

counterfeit substance by a person not registered under this 

act, or a practitioner not registered or licensed by the 

appropriate State board, unless the substance was 

obtained directly from, or pursuant to, a valid prescription 

order or order of a practitioner, or except as otherwise 

authorized by this act.

35 P.S. § 780-113(a)(16).

Because Appellant was not found with contraband on his person, the 

Commonwealth was required to establish that Appellant had constructive 

possession of the seized items to support his conviction. Commonwealth 

v. Kinard, 95 A.3d 279, 292 (Pa. Super. 2014).

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 
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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. (quoting Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 

2012)). Moreover,

[w]here 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. [Rather], 

the Commonwealth must introduce evidence demonstrating 

either Appellant’s participation in the drug-related activity or 

evidence connecting Appellant to the specific room or areas 

where the drugs were kept.

Commonwealth v. Bricker, 882 A.2d 1008, 1016 (Pa. Super. 2005) 

(internal quotation marks and citation omitted).

Appellant argues that the Commonwealth failed to present sufficient 

evidence to prove that he had constructive possession of the contraband. 

Specifically, Appellant contends that the circumstances of the case do not 

suggest that he had knowledge of the drugs prior to overhearing police tell 

his girlfriend that they were going to call Children and Youth Services (CYS). 

Appellant’s Brief at 10-11. Appellant also emphasizes that his mere 

proximity to the contraband is insufficient to establish constructive 

possession. Id.

At trial, the Commonwealth presented the testimony of Pennsylvania 

State Police Troopers Robert Hutchinson and Michael Adams. Trooper 

Hutchinson testified that, while executing an arrest warrant for Appellant at 
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the residence, Trooper Hutchinson entered a room where Appellant was 

sleeping on the left side of the bed, a small infant girl was sleeping in the 

middle, and Appellant’s girlfriend was sleeping on the right side of the bed. 

N.T., 6/24/2014, at 14-16. Trooper Hutchinson said he woke up the 

individuals and placed Appellant under arrest. Id. at 16. Trooper 

Hutchinson explained that there was a nightstand on the left side of the bed, 

where two small green zip lock baggies with residue “were laying right 

beside [Appellant].” Id. at 16-17. Trooper Hutchinson testified that the 

items were consistent with bath salts, so he took the items into possession. 

Id. at 17. Trooper Hutchinson stated that Appellant was eventually escorted 

outside to the police car. Id. at 17-18. Troopers Hutchinson and Adams 

both confirmed that Appellant told Trooper Adams that the baggies were his. 

Id. at 33-34, 61. The troopers further testified that it was protocol to call 

CYS in a drug case involving the presence of children and that such a call 

was made in this case. Id. 28, 37-39.

Appellant also testified at trial. Appellant admitted that he had a drug 

problem, used bath salts, had brought bath salts to the residence in the 

past, and had received bath salts from others at times as well. Id. at 49, 

51-52, 56. Appellant further stated that, on the day he was arrested, he 

was sleeping on the side of the bed with the nightstand upon which the 
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baggies were found. Id. at 50-51. Appellant also testified that when asked 

if the baggies were his, he replied, “I guess they are mine.” Id. at 53, 56.

This evidence, viewed together and in the light most favorable to the 

Commonwealth, is sufficient to prove that Appellant had constructive 

possession of the contraband in question. Although Appellant testified at 

trial that the baggies were not actually his and that he said they were his 

only because he overheard the police talking to his girlfriend about calling 

CYS and he “didn’t want them taking [his] girlfriend’s daughter away from 

her,” id. at 53-54, 56-59, it is clear that the jury did not credit this 

testimony. See Harden, 103 A.3d at 111 (“[T]he [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.”).

Based on the foregoing, Appellant is not entitled to relief on his 

sufficiency claim. Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/30/2015