J-S30031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TEKEESHA L. LOVELACE

Appellant No. 3240 EDA 2014

Appeal from the Judgment of Sentence July 18, 2014

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0000458-2014

 CP-15-CR-0001478-2014

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED JULY 14, 2015

Appellant Tekeesha Lovelace appeals from the judgment of sentence 

entered in the Chester County Court of Common Pleas following her jury trial 

conviction for possession of a controlled substance.1 We affirm.

The trial court sets forth the relevant facts of this appeal as follows:

On November 29, 2013 at approximately 2:45 p.m., 

Officer Marquette and Officer Corcoran of the Coatesville City 

____________________________________________

1 35 P.S. § 780-113(a)(16). In addition to possession of a controlled 

substance, Appellant was convicted of driving under the influence of a 

controlled substance (“DUI”) (75 Pa.C.S. § 3802(d)(2)), endangering welfare 

of children (18 Pa.C.S. § 4304(a)(1)), possession of drug paraphernalia (35 

P.S. § 780-113(a)(32)), and recklessly endangering another person (18 

Pa.C.S. § 2705). Appellant challenges only her possession of a controlled 

substance conviction in the instant appeal.
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Police Department were on duty in full uniform in a marked 

patrol vehicle. They were travelling in the area of South 6th

Avenue and Olive Street in Coatesville, Chester County, 

Pennsylvania, when they observed a dark colored SUV with dark 

tinting on the front driver’s side and front passenger’s side 

windows. Due to the level of tinting, neither Officer was able to 

see into the vehicle through the front passenger’s side window. 

The SUV began to move, and Officer Marquette was able to see 

the driver through the vehicle’s front windshield, which was not 

tinted. He immediately recognized the driver as [Appellant]. 

Based upon prior contacts with [Appellant], Officer Marquette 

believed her driving privileges were suspended. He radioed into 

dispatch, and Corporal Ingemie of the Coatesville City Police 

Department confirmed that [Appellant’s] license was, in fact, 

suspended. Based upon this information, Officer Marquette 

initiated a traffic stop.

Officer Marquette approached [Appellant] and requested 

her license, registration and insurance information. [Appellant] 

told him that she had no license to provide. While speaking with 

[Appellant], Officer Marquette noticed a chemical smell 

emanating from the vehicle. He also observed that [Appellant] 

was swaying, her eyes were wandering, and she could not 

formulate complete sentences. He also observed three small 

children, ages eight (8), four (4) and one (1) years old, in the 

back seat of the vehicle, some of whom were not properly 

restrained.

Corporal Ingemie and Officer Galletta of the Coatesville 

City Police Department arrived on the scene while the traffic stop 

was taking place. Officer Galletta then conducted field sobriety 

tests (hereinafter “FSTs”) on [Appellant]. At one point, he had 

to support [Appellant] to keep her from falling. At first, 

[Appellant] was fairly lethargic, but she became more aggressive 

and combative while the FSTs were being administered.

Based on the foregoing, [Appellant] was charged with 

[DUI], [d]riving while [o]perating [p]rivilege is [s]uspended or 

[r]evoked, [r]ecklessly [e]ndangering [a]nother [p]erson, 

[e]ndangering [w]elfare of [c]hildren, and related offenses. She 

was placed under arrest and asked to submit to a blood test, but 

she refused.

During the stop, a “dipper” was found in plain view in the 

center console of the vehicle by Corporal Ingemie. A “dipper” is 
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a cigarette that is dipped into a chemical such as PCP and then 

smoked. The “dipper” was bagged and sent to the lab for 

analysis. It tested positive for PCP. After the police received the 

lab report confirming the presence of PCP, [Appellant] was also 

charged with Possession of a Controlled Substance.

Trial Court Opinion, filed July 1, 2014, at 1-3.

After a three-day trial, a jury found Appellant guilty of DUI, 

endangering welfare of children, possession of a controlled substance, 

possession of drug paraphernalia, and recklessly endangering another 

person. The trial court sentenced her to an aggregate of 8 to 23 months’ 

incarceration followed by 3 years’ probation. Appellant filed a post-sentence 

motion seeking dismissal of all charges, reversal of all convictions, and/or a 

new trial, which the court denied on October 20, 2014. Appellant timely 

filed her notice of appeal on November 17, 2014. Both Appellant and the 

trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

[1.] The trial [court] erred when it failed to reverse the 

verdict of guilty of the [p]ossession of a [c]ontrolled [s]ubstance 

when the court in reviewing the sufficiency of the evidence found 

that there is sufficient evidence to enable the fact-finder to find 

every element of the crime beyond a reasonable doubt.

[2.] The Appellant is entitled to a new trial as facts 

presented at trial indicated that the Appellant was not guilty 

were so clearly of greater weight that to have ignored them or to 

give them equal weight with all the facts was to deny Appellant 

justice. Commonwealth v. Cesar, 911 A.2d 978 

(Pa.Super.2006).

Appellant’s Brief, p. 4.
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Appellant first claims that the Commonwealth adduced insufficient 

evidence to support her conviction for possession of a controlled substance. 

See Appellant’s Brief, pp. 12-19. Specifically, Appellant argues that the 

Commonwealth failed to prove Appellant actually or constructively possessed 

the PCP-laced cigarette found in her vehicle. See id. Her argument relies 

solely on the fact that, at the time police pulled her over, there was an 

individual in the passenger’s seat of her vehicle whom the police later 

released. Id. Appellant contends that, because this passenger had equal 

access to the PCP-laced cigarette, the Commonwealth failed to prove that 

she herself possessed the PCP-laced cigarette. Id. This claim lacks merit.

When examining a challenge to the sufficiency of evidence, this Court’s 

standard of review is as follows:

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 

[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.
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Commonwealth v. Smith, 97 A.3d 782, 790 (Pa.Super.2014).

The offense of possession of a controlled substance makes illegal:

Knowingly or intentionally possessing a controlled or counterfeit 

substance by a person not registered under [The Controlled 

Substance, Drug, Device and Cosmetic 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 [The Controlled Substance, Drug, 

Device and Cosmetic Act].

35 P.S. § 780-113(a)(16). 

Possession of a controlled substance may be either actual or 

constructive. Commonwealth v. Aviles, 615 A.2d 398, 401 

(Pa.Super.1992). Where police do not find drugs on a defendant’s person, 

the Commonwealth can only properly convict by proving constructive 

possession. Id.

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.

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

any other element of a crime, constructive possession may be proven by 

circumstantial evidence.” Commonwealth v. Haskins, 677 A.2d 328, 330 

(Pa.Super.1996). “The intent to exercise conscious dominion can be inferred 
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from the totality of the circumstances.” Commonwealth v. Kirkland, 831 

A.2d 607, 610 (Pa.Super.2003). Further, “[c]onstructive possession may be 

found in one or more actors where the item in issue is in an area of joint 

control and equal access.” Commonwealth v. Valette, 613 A.2d 548, 550 

(Pa.1992); see also Commonwealth v. Haskins, 677 A.2d 328, 330 

(Pa.Super.1996) (multiple people may constructively possess the same 

item).

The trial court summarized the trial evidence thusly:

The record reflects that [Appellant] was the owner and driver of 

the vehicle in which the PCP[-]laced cigarette was found. When 

police approached [Appellant’s] vehicle for a window tinting 

violation, they noticed that [Appellant’s] eyes were bloodshot 

and moving erratically from side to side, her head was swaying 

and she had a hard time formulating sentences. She had a hard 

time keeping her balance and she used her arm to steady herself 

when she walked around the vehicle. The officer saw a 

discolored cigarette filter in plain view in the center console[2]

and could detect the smell of PCP (a distinctive sweet chemical 

smell) emanating from the car. While the front seat passenger 

of the vehicle was identified, she did not stagger, slur her words, 

or show any other sign of being intoxicated or impaired. Even 

though [Appellant] attempted to claim that the PCP[-]laced 

cigarette belonged to the passenger in her car, the jury did not 

believe her.

Trial Court Pa.R.A.P. 1925(a) Opinion (“1925(a) Opinion)”, filed February 3, 

2015, p. 4. This evidence established the elements of possession of a 

____________________________________________

2 We note that the center console where police saw the “dipper” constitutes 

an area of joint control and equal access to both Appellant and her 

passenger. 
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controlled substance beyond a reasonable doubt. The fact that police did not 

charge the passenger with possession of a controlled substance does not 

render Appellant innocent of the crime. Accordingly, Appellant’s sufficiency 

of the evidence claim fails.

Appellant next claims that the verdict was against the weight of the 

evidence. See Appellant’s Brief, p. 20-26. Appellant bases this claim on 

minor inconsistencies in the police officers’ testimony and an alleged custody 

chain failure regarding the PCP-laced cigarette. See id. She is again 

incorrect.

The denial of a new trial based on a lower court’s determination that 

the verdict was not against the weight of the evidence is one of the least 

assailable reasons for granting or denying a new trial. See

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.2013). This Court 

reviews weight of the evidence claims pursuant to the following standard:

A motion for new trial on the grounds that the verdict is contrary 

to the weight of the evidence, concedes that there is sufficient 

evidence to sustain the verdict. Thus, the trial court is under no 

obligation to view the evidence in the light most favorable to the 

verdict winner. An allegation that the verdict is against the 

weight of the evidence is addressed to the discretion of the trial 

court. A new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same facts 

would have arrived at a different conclusion. A trial judge must 

do more than reassess the credibility of the witnesses and allege 

that he would not have assented to the verdict if he were a 

juror. Trial judges, in reviewing a claim that the verdict is 

against the weight of the evidence do not sit as the thirteenth 

juror. Rather, the role of the trial judge is to determine that 

notwithstanding all the facts, certain facts are so clearly of 
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greater weight that to ignore them or to give them equal weight 

with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal 

citations, quotations, and footnote omitted).

Stated differently, a court may award a new trial because the verdict is 

against the weight of the evidence only when the verdict is so contrary to 

the evidence as to shock one’s sense of justice,3“such that right must be 

given another opportunity to prevail.” Commonwealth v. Goodwine, 692 

A.2d 233, 236 (Pa.Super.1997). Moreover, appellate review of a weight 

claim consists of a review of the trial court’s exercise of discretion, not a 

review of the underlying question of whether the verdict is against the 

weight of the evidence. Widmer, 744 A.2d at 753. When reviewing the 

trial court’s determination, this Court gives the gravest deference to the 

findings of the court below. We review the court’s actions for an abuse of 

discretion. Id.

____________________________________________

3 This Court has explained the notion of “shocking to one’s sense of justice” 

as follows:

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.

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004) 

(internal citations and quotations omitted).
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Simply stated, the jury’s verdict in this matter illustrates that the jury 

found the testimony of the Commonwealth’s witnesses credible, and 

Appellant’s testimony incredible. This evidence, as discussed supra, proved 

every element of the crime of possession of a controlled substance. The trial 

court agreed with the jury’s assessment in denying Appellant’s postsentence motion for a new trial based on the weight of the evidence. As the 

trial court noted, nothing about the verdict or the trial court’s reasoning 

shocks the conscience. See 1925(a) Opinion, p. 5. Thus, Appellant’s weight 

of the evidence claim warrants no relief.

For the preceding reasons, we affirm Appellant’s judgment of 

sentence. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2015