J-S27024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMIL SMITH

Appellant No. 1449 EDA 2014

Appeal from the Judgment of Sentence Entered April 3, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0010074-2011

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,*JJ. 

MEMORANDUM BY STABILE, J.: FILED JULY 20, 2015

Appellant, Jamil Smith, appeals from the April 3, 2014 judgment of 

sentence imposing an aggregate seven to fourteen years of incarceration 

followed by five years of probation for possession with intent to deliver a 

controlled substance (“PWID”), unlawful possession of a firearm, and 

possession of an instrument of crime.1 We affirm. 

The transcript for Appellant’s pre-trial motion to suppress2reveals 

that, on February 26, 2011 at 2:45 a.m., Officers Timothy Straus (“Officer 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 6105 and 907, respectively. 

2

 The first of Appellant’s three assertions of error is that the trial court 

wrongly denied his motion to suppress evidence. In analyzing that 

(Footnote Continued Next Page)
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Straus”) and his partner were on patrol in the 35th police district of 

Philadelphia when they received a report of three armed males breaking into 

a home. N.T. Hearing, 7/18/12, at 14-15. The armed men entered the 

home from an alleyway north of Spencer Street. Id. The officers arrived at 

the location in less than one minute and observed two men jumping over a 

fence from the backyard of a home located at 253 West Spencer Street. Id.

at 16, 31. The officers stopped these two men and did a pat down search 

for safety. Id. The pat-down search revealed rolls of duct tape and packing 

tape. Id. One suspect had a single glove on him. Id. The matching glove 

and a second pair of gloves were in the back yard. Id. Officer Straus 

observed a shotgun and handgun laying on a mattress in the backyard the 

two detainees just departed. Id. The home had a broken window and 

broken glass and a screwdriver were visible on the mattress next to the 

guns. Id. at 16-17. The officers knocked on the back door and received no 

answer, then entered the home to search for potential victims and/or the 

third armed male referenced in the report. Id. at 18, 25. They entered 

through the broken window because they could not get in through the door. 

Id. at 18, 43. 

A black female came downstairs and met the officers. Id. They briefly 

detained her and then proceeded upstairs to secure bedrooms. Id. In one 

(Footnote Continued) _______________________

argument, we confine our review to the transcript of the suppression 

hearing. In re L.J., 79 A.3d 1073, 1082-85 (Pa. 2014). 
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of the upstairs bedrooms the officers found Appellant in bed with a black 

female. Id. at 18-19. Also on the bed was a dinner plate with apparent 

narcotics and packaging material on it. Id. at 19. When asked, Appellant 

acknowledged that two guns were underneath the mattress. Id. at 21. The 

officers took Appellant into custody and secured the house as a crime scene 

and obtained a search warrant. Id. at 22, 31. 

Officer Anthony Parrotti (“Officer Parrotti”) executed the search 

warrant. Id. at 31. During the search, Officer Parrotti discovered suspected 

marijuana, crack cocaine, Xanax, Percocet and methadone in the dining 

room. Id. at 32. In the second floor bedroom, where police apprehended 

Appellant, Officer Parrotti discovered more suspected marijuana and crack 

cocaine and paraphernalia, including a digital scale and drug packaging 

materials. Id. at 33. Officer Parrotti also recovered two revolvers from 

underneath the bed, a .38 caliber and a .32 caliber, each with five live 

rounds. Id. at 33-34. The second floor bedroom also had a small 

refrigerator in which Officer Parrotti found suspected PCP. Id. at 34. Officer 

Parrotti found more than $1,200.00 in cash on a dresser. Id. Field tests 

confirmed the presence of marijuana and cocaine base, and Officer Parrotti 

submitted the pills for laboratory sampling. Id. 

Yasmine Strong (“Strong”), the female who met police at the bottom 

of the steps, testified for the defense. She stated police knocked at the 

house’s front gate, which she did not have a key to unlock. Id. at 58. 
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Police asked her to squeeze through a space in the gate and then handcuffed 

her before they entered the home by breaking the front door. Id. at 59. 

When she returned to the home the next day, she did not observe any of the 

bedroom doors to be broken. Id. at 60. 

Appellant argues the police had no probable cause and exigent 

circumstances to support the initial warrantless entry into the home. He 

argues the trial court erred in denying his motion to suppress the evidence 

garnered during the initial entry of the home and during the execution of the 

search warrant. We conduct our review as follows: 

Our standard of review in addressing a challenge to the 

denial of a suppression motion is limited to determining whether 

the suppression court’s factual findings are supported by the 

record and whether the legal conclusions drawn from those facts 

are correct. Because the Commonwealth prevailed before the 

suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record 

as a whole. Where the suppression court’s factual findings are 

supported by the record, we are bound by these findings and 

may reverse only if the court’s legal conclusions are erroneous. 

Where, as here, the appeal of the determination of the 

suppression court turns on allegations of legal error, the 

suppression court’s legal conclusions are not binding on an 

appellate court, whose duty it is to determine if the suppression 

court properly applied the law to the facts. Thus, the

conclusions of law of the courts below are subject to our plenary 

review. 

Com. v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012), appeal denied, 

65 A.3d 413 (Pa. 2013). 

The Fourth Amendment to the United States Constitution and Article 1, 

§ 8 of the Pennsylvania Constitution protect citizens against unreasonable 
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searches and seizures. Both constitutions forbid police to enter a private 

home without a warrant absent probable cause and an exception to the 

warrant requirement, such as consent or exigent circumstances. 

Commonwealth v. Johnson, 68 A.3d 930, 935 (Pa. Super. 2013). 

Probable cause exists where “the facts and circumstances which are within 

the knowledge of the officer at the time of the arrest, and of which he has 

reasonably trustworthy information, are sufficient to warrant a man of 

reasonable caution in the belief that the suspect has committed or is 

committing a crime.” Commonwealth. v. Thompson, 985 A.2d 928, 931 

(Pa. 2009). We need not discern whether the officer’s belief was more likely

correct than incorrect. Id. A probability of criminal activity, rather than a 

prima facie showing thereof, is sufficient. Id. To answer the question, we 

examine the totality of the circumstances. Id. 

Here, police received a radio report of a possible armed robbery. We 

can assess the reliability of information known to the police in various ways, 

including the extent to which police are able verify it. Commonwealth v. 

Santiago, 736 A.2d 624, 630 (Pa. Super. 1999), appeal denied, 736 A.2d 

624 (Pa. 2000). Officer Straus and his partner responded to the scene in 

less than one minute. Officer Straus observed two men leap over a fence 

from a yard into an alley. Firearms were visible on a mattress in the yard, 

as was broken glass, a broken window and a screwdriver. Thus, the record 
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indicates police responded quickly to the report and upon arrival at the 

scene observed circumstances consistent with the report. 

The trial court found that the screwdriver, the tape and the gloves 

were consistent with burglary tools. Trial Court Opinion, 8/26/14, at 4. The 

trial court also relied on the quick response time, the presence of firearms in 

the backyard, and the broken window to conclude that probable cause 

existed. Id. Appellant’s argument to the contrary is that the police 

gathered no evidence to support their theory that a third individual was 

inside the home. Appellant also argues that the police made insufficient

efforts to make contact with someone inside the home before they entered. 

Given the totality of the circumstances, we find no error in the trial 

court’s legal conclusion. Police arrived at the scene of an alleged armed 

home invasion less than sixty seconds after receiving the report, and 

observed circumstances consistent with the report. The absence of a third 

armed suspect upon the arrival of the police does not support a contrary 

conclusion. Rather, police could reasonably believe the third suspect 

remained inside the home or that victims inside the home were in need of 

assistance. Considering the totality of the circumstances, the record of the 

suppression hearing supports at least a reasonable probability that criminal 

activity was afoot inside the home. 

Next, we examine the trial court’s finding that exigent circumstances 

existed. 
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[V]arious factors need to be taken into account to assess 

the presence of exigent circumstances; for example: (1) the 

gravity of the offense; (2) whether the suspect is reasonably 

believed to be armed; (3) whether there is a clear showing of 

probable cause; (4) whether there is a 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 is peaceable; (7) the 

timing of the entry; (8) whether there is hot pursuit of a fleeing 

felon; (9) whether there is a likelihood that evidence will be 

destroyed if police take the time to obtain a warrant; and (10) 

whether there is a danger to police or other persons inside or 

outside of the dwelling to require immediate and swift action.

Johnson, 68 A.3d at 937 (quoting Commonwealth v. Dean, 940 A.2d 

514, 522 (Pa. Super. 2008)). In analyzing exigent circumstances, courts 

must balance the needs of law enforcement against the rights and liberties 

of private citizens. Id. “The burden is on the Commonwealth to ‘present 

clear and convincing evidence that the circumstances surrounding the 

opportunity to search were truly exigent ... and that the exigency was in no 

way attributable to the decision by the police to forego seeking a warrant.’” 

Com. v. Bostick, 958 A.2d 543, 556-57 (Pa. Super. 2008) (quoting 

Commonwealth v. English, 839 A.2d 1136, 1141 (Pa. Super. 2003)), 

appeal denied, 987 A.2d 158 (Pa. 2009). “Moreover, ‘[a]ll decisions made 

pursuant to the exigent circumstances exception must be made cautiously, 

for it is an exception which by its nature can very easily swallow the rule 

unless applied in only restricted circumstances.’” Id. 

We consider the ten factors described in Johnson in order. First, 

police acted on a report of three armed men burglarizing a home. Appellant 
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does not deny that armed intrusion into a private home is a grave offense. 

Second, police apprehended two of three suspects and observed two 

firearms in the backyard upon their prompt arrival at the scene. Police could 

reasonably believe that the third suspect remained armed. Regarding the 

third factor, we have already explained that police had probable cause to 

believe a crime was committed in the home. Fourth, police arrived at the 

home within a minute of the report and found two of the three suspects

described in the report. Given the prompt response time, police could 

reasonably believe that the third suspect was still present and potentially 

inside the home. Fifth, two of the three suspects were leaving the premises 

upon the arrival of police. Police therefore had reason to believe that the 

reported third suspect would escape if they did not promptly apprehend him. 

Sixth, Officer Straus testified that he knocked and announced his presence, 

received no answer, and then entered the home through the broken window 

with another officer. The trial court did not credit Strong’s testimony 

regarding the forced entry through the front door. 

The seventh factor—timing—refers to the time of day of the search. 

Commonwealth v. Waddell, 61 A.3d 198, 211 (Pa. Super. 2012). 

Nighttime searches are “particularly suspect.” Commonwealth v. Roland, 

637 A.2d 269, 271 (Pa. 1994). Here police entered the home in the early 

morning hours of February 26, 2011. The timing, however, was dictated by 

a report of a robbery or burglary in progress. Eighth, the record does not 
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reflect hot pursuit of a fleeing felon. Nonetheless, the facts known to police 

created a strong possibility that a third suspect was present and could 

escape if not quickly apprehended. Ninth, nothing in the record indicates 

the police entered the home to prevent destruction of evidence. Tenth, an 

invasion of a private home by three armed intruders created a danger to any 

occupants of the home. Immediate entry gave the police the opportunity to 

apprehend a third armed suspect and render assistance to any victims. 

In Commonwealth v. Griffin, 785 A.2d 501, 505-06 (Pa. Super. 

2001), this Court held that police lawfully entered a home where they had 

probable cause to believe felonious drug activity was occurring inside and 

they observed an armed suspect retreat into the home. The potential for 

destruction of evidence combined with the danger presented by an armed 

suspect under cover of nightfall justified immediate entry rather than 

securing the home pending a warrant. Id. at 506. 

We believe the same result obtains here. Based on information known 

to them at the time of warrantless entry, the police reasonably believed they 

were at the scene of an armed home invasion possibly still in progress. 

Apprehension of a third armed suspect would protect the police and any 

lawful occupants of the home. In other words, the entry of the home was an 

effort to protect rather than intrude upon the rights of lawful occupants. We 

therefore believe the balance between the interests of law enforcement and 

the rights of private citizens tips in favor of law enforcement in this case. 
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The trial court did not err in finding that exigent circumstances justified 

warrantless entry into the home. Appellant’s first argument lacks merit. 

In his remaining arguments, Appellant challenges the sufficiency and 

weight of the evidence in support of each of his convictions. We must 

therefore review the record to determine:

[W]hether the evidence admitted at trial, and all 

reasonable inferences drawn from that evidence, when viewed in 

the light most favorable to the Commonwealth as verdict winner, 

was sufficient to enable the factfinder to conclude that the 

Commonwealth established all of the elements of the offense 

beyond a reasonable doubt. Additionally, when examining 

sufficiency issues, we bear in mind that: the Commonwealth’s 

burden may be sustained by means of wholly circumstantial 

evidence; the entire trial record is evaluated and all evidence 

received against the defendant considered; and the trier of fact 

is free to believe all, part, or none of the evidence when 

evaluating witness credibility. 

Commonwealth v. Crabill, 926 A.2d 488, 490-91 (Pa. Super. 2007). 

Appellant argues the record lacks sufficient evidence of his possession 

of the drugs and firearms present in the bedroom where police apprehended 

him. Appellant acknowledges that he was a resident of the home (mail 

recovered during execution of the search warrant confirmed this fact), but 

he argues the evidence is not sufficient to prove the contraband belonged to 

him rather than one of the two females present at the time of his arrest. 

Appellant’s Brief at 21. In other words, Appellant argues the Commonwealth 

failed to prove beyond a reasonable doubt his constructive possession of the 

drugs and firearms. 
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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. Hopkins, 67 A.3d 817, 820, (Pa. Super. 2013), appeal 

denied, 78 A.3d 1090 (2013). The factfinder can find the defendant in 

constructive possession of contraband in a home where the defendant has 

equal access and the items are in plain view. Commonwealth v. Mudrick, 

507 A.2d 1212, 1214 (Pa. 1986). A defendant’s residence in and receipt of 

mail at a home support a conclusion that he is in constructive possession of 

contraband found therein. Commonwealth v. Harvard, 64 A.3d 690, 699-

700 (Pa. Super. 2013), appeal denied, 77 A.3d 636 (Pa. 2013); 

Commonwealth v. Guitierez, 969 A.2d 584, 590-91 (Pa. Super. 2009), 

appeal denied, 983 A.2d 726 (Pa. 2009). 

In Commonwealth v. Santiesteban, 552 A.2d 1072, 1075 (Pa. 

Super. 1988), the defendant was in bed with a female when police 

apprehended him. Police found large amounts of cash in the bedroom and 

other contraband on the first floor of the house. Citing Mudrick, this Court 

found sufficient evidence of the defendant’s constructive possession of the 

contraband. 
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The facts produced at trial were, in pertinent part, the same as those 

produced during the suppression hearing. That is, police apprehended 

Appellant in a bedroom where they also found substantial quantities of 

drugs, drug paraphernalia, cash and two firearms. Two females were 

present in the home with Appellant, including Strong, who claimed to live 

there, and the woman in bed with Appellant. Since Appellant resided in the 

home, received mail there, and had equal access to contraband found in 

plain view and in his bedroom, we conclude the record contains sufficient 

evidence of his constructive possession of the controlled substances and 

firearms that formed the basis for all three of his conviction. Appellant’s 

argument to the contrary, which fails to cite any portion of the record in 

violation of Pa.R.A.P. 2119(c), states in conclusory fashion that the illicit 

items could have belonged to one of the two females present. That 

argument does not merit relief. 

Finally, Appellant argues the jury’s verdict is contrary to the weight of 

the evidence. 

The weight given to trial evidence is a choice for the 

factfinder. If the factfinder returns a guilty verdict, and if a 

criminal defendant then files a motion for a new trial on the 

basis that the verdict was against the weight of the evidence, a 

trial court is not to grant relief unless the verdict is so contrary 

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

When a trial court denies a weight-of-the-evidence motion, 

and when an appellant then appeals that ruling to this Court, our 

review is limited. It is important to understand we do not reach 

the underlying question of whether the verdict was, in fact, 

against the weight of the evidence. We do not decide how we 
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would have ruled on the motion and then simply replace our own 

judgment for that of the trial court. Instead, this Court 

determines whether the trial court abused its discretion in 

reaching whatever decision it made on the motion, whether or 

not that decision is the one we might have made in the first 

instance. 

Commonwealth v. West, 937 A.2d 516, 521 (2007), appeal denied, 947 

A.2d 737 (Pa. 2008). 

The entirety of Appellant’s argument—other than his recitation of the 

standard of review—is that the jury’s verdict was incorrect because two 

other people were in the house when police apprehended Appellant. 

Appellant’s Brief at 23-24. As we discussed in connection with Appellant’s 

sufficiency of the evidence argument, equal access to items in plain view can 

establish constructive possession. We discern nothing shocking about the 

jury’s verdict. The trial court did not abuse its discretion in declining to 

award a new trial based on Appellant’s weight of the evidence challenge. 

Appellant’s argument fails. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2015