NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee MALIK WALKER, v. Appellant No EDA 2012 Appeal from the Judgment of Sentence Entered April 9, 2009 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR BEFORE: BENDER, J., BOWES, J., and STRASSBURGER, J. * MEMORANDUM BY BENDER, J.: FILED SEPTEMBER 05, 2013 Appellant, Malik Walker, appeals nunc pro tunc from the judgment of sentence of six to twelve years incarceration, imposed after a jury convicted him of possession with intent to deliver a controlled substance (PWID) and providing false identification to law enforcement authorities. We affirm. The trial court set forth the facts of this case as follows: At trial, the Commonwealth presented the testimony of Philadelphia Police Officers Michael Alice, Timothy Dunne, Michael Spicer, and Philadelphia Police Detective Joseph Marano. Viewed in the light most favorable to the Commonwealth as the verdict winner, their testimony established the following. On April 9, 2008, at approximately 11 p.m., Philadelphia Police Officers Michael Alice and Timothy Dunne were patrolling the area of 33 rd Street and Melon Street when they observed a maroon Nissan Maxima make a left-hand turn without signaling. Officers Alice and Dunne pulled the car over at the 3100 block of Spring Garden Street. As they exited their patrol car and * Retired Senior Judge assigned to the Superior Court.

2 approached the Nissan, Officer Alice and Officer Dunne both observed [Appellant], who was sitting in the driver s seat, lean down over to the passenger floor area of the car. Officer Alice told [Appellant] to place the car in park and for [Appellant] and the three other occupants of the car to keep their hands in the air. Officer Alice then asked [Appellant] for his driver s license, registration, and proof of insurance. [Appellant] produced the registration, proof of insurance, and a driver s license that bore the name Jamal Jackson, with [Appellant s] photograph. Officer Alice and Officer Dunne then observed that one of the passengers in the backseat, later identified as Keyon Walker, was moving around and fidgeting, and not keeping his hands where the officers could see them. Officer Dunne removed Keyon Walker from the vehicle and placed him in the patrol car. Officer Alice returned to the Nissan and shone his flashlight on the floor of the front seat. Officer Alice observed the corner of a plastic bag protruding from the area where the car s carpet met the plastic console, near [Appellant s] feet. Officer Alice removed [Appellant] from the vehicle, then returned to the Nissan s driver s seat and tugged on the plastic bag that he had seen protruding from the console. The plastic bag that emerged contained 40 pink-tinted packets of crack cocaine. As Officer Alice pulled this bag out, another bag came out of the console. This bag contained 41 pink-tinted packets of crack cocaine. Officer Alice placed [Appellant] in custody. Officer Dunne asked the man in the front passenger seat, later identified as Randall Surrency, to get out of the car. Officer Dunne then shone his flashlight on the passenger floor area, where the officers had seen [Appellant] lean over moments before. Officer Dunne recovered from the floor of the passenger seat 54 pink-tinted packets of crack cocaine. [Appellant], Keyon Walker, Randall Surrency, and the fourth occupant of the vehicle, Richard Pryor, were taken to police headquarters. [Appellant] was searched incident to arrest, and police recovered $1,040 in cash from his person. The police then learned that [Appellant] had produced a driver s license with a false name when he was pulled over, and that [Appellant s] actual license had been suspended. Police searched the car and found another false driver s license in the - 2 -

3 center console of the vehicle. This license was identical to the one produced to police by [Appellant] at the initial stop, with the name Jamal Jackson, and [Appellant s] photograph. Trial Court Opinion (T.C.O.), 12/27/12, at 2-3 (citations to the record omitted). 1 Based on this evidence, Appellant was arrested and charged with the above-stated crimes. Prior to trial, he filed a motion to suppress the drug evidence recovered from his vehicle, arguing that police did not have probable cause to conduct a warrantless search. After holding a hearing, the court denied Appellant s motion and his case proceeded to a jury trial. On February 26, 2009, the jury convicted Appellant of PWID and providing false identification to law enforcement authorities. On April 9, 2009, Appellant was sentenced to an aggregate term of six to twelve years incarceration. He did not file a direct appeal. However, on May 10, 2010, Appellant filed a petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S , 1 In its Pa.R.A.P. 1925(a) opinion, the trial court explains that [t]he notes of testimony from the suppression hearing were not transcribed, and neither the [c]ourt nor the parties were able to secure the notes from the court reporter, who no longer is employed by the [c]ourt. T.C.O. at 4 n.1. Consequently, in assessing Appellant s claim, the court relied on its findings of fact and conclusions of law that were issued at a separate hearing on September 15, 2008, as well as the trial testimony of Officer Alice, who was the only witness at the suppression hearing. Id. For portions of the [suppression] hearing testimony which were not covered at the trial, the court states that it has relied on its handwritten notes from the hearing. Id. As neither the Commonwealth nor Appellant object to the court s method of reconstructing the record of the suppression hearing, we accept that method as appropriate under the circumstances

4 seeking the restoration of his appeal rights nunc pro tunc. While the PCRA court issued an order denying Appellant s petition, on appeal to this Court, we vacated that order and reinstated Appellant s direct appeal rights nunc pro tunc. Commonwealth v. Walker, 53 A.3d 937 (Pa. Super. 2012) (unpublished memorandum). Appellant subsequently filed a notice of appeal nunc pro tunc, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he presents three issues for our review: [I.] Did the trial court commit an error of law by denying [A]ppellant s motion to suppress all evidence seized inside the automobile because police lacked sufficient grounds to seize the evidence taken therefrom insofar as the items were clearly not weapons, the police failed to immediately identify the items as contraband having merely observed plastic, and the police seized the items without a warrant at a time when the law required police to have one? [II.] Was the evidence insufficient to support [A]ppellant s drug convictions arising out of the seizure of the evidence from inside the car he was driving, which was not registered to him, because the evidence failed to prove beyond a reasonable doubt that [A]ppellant had actual or constructive possession of the items on which those convictions are premised and because other persons had access to and could have been the true possessors of the contraband at the time it was seized? [III.] Did the trial court deprive [A]ppellant of a fair trial when it overruled objections to closing comments made by the prosecutor wherein he argued that the jury could find [A]ppellant guilty if it concluded that [A]ppellant was selling drugs and working with the other occupants of the car in that endeavor and that he jointly possessed the drugs found in the car with the other occupants of the car? Appellant s Brief at

5 In Appellant s first issue, he argues that the court erred by denying his motion to suppress the drug evidence discovered in the vehicle he was driving. Our standard of reviewing the denial of a suppression motion is as follows: In reviewing an order from a suppression court, we consider the Commonwealth s evidence, and only so much of the defendant s evidence as remains uncontradicted. We accept the suppression court s factual findings which are supported by the evidence and reverse only when the court draws erroneous conclusions from those facts. Commonwealth v. Hoopes, 722 A.2d 172, (Pa. Super. 1998). The trial court determined that the drug evidence was admissible based on the plain view exception to the warrant requirement. Recently, in Commonwealth v. Anderson, 40 A.3d 1245 (Pa. Super. 2012), this Court explained: Generally, a warrant stating probable cause is required before a police officer may search for or seize evidence. However, [t]he plain view doctrine provides that evidence in plain view of the police can be seized without a warrant, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), as modified by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), and it was adopted by our Supreme Court in Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992). The plain view doctrine applies if 1) police did not violate the Fourth Amendment during the course of their arrival at the location where they viewed the item in question; 2) the item was not obscured and could be seen plainly from that location; 3) the incriminating nature of the item was readily apparent; and 4) police had the lawful right to access the item

6 Commonwealth v. Sodomsky, 939 A.2d 363, 370 (Pa.Super.2007), appeal denied, 599 Pa. 709, 962 A.2d 1196 (2008), cert. denied, U.S., 129 S.Ct. 2776, 174 L.Ed.2d 272 (2009) (some citations omitted). Id. at (footnote omitted). Instantly, Appellant contends that the Commonwealth failed to prove that the incriminating nature of the item was readily apparent. Id. at Our Court has discussed this element of the plain view exception, stating: In determining whether the incriminating nature of an object [is] immediately apparent to the police officer, we look to the totality of the circumstances. An officer can never be one hundred percent certain that a substance in plain view is incriminating, but his belief must be supported by probable cause. Commonwealth v. Johnson, 921 A.2d 1221, 1223 (Pa. Super. 2007) (citations and internal quotation marks omitted). Appellant maintains that here, Officer Alice s observing the corner of a clear plastic bag did not make it immediately apparent that there were drugs contained therein. In support of this argument, Appellant relies on Commonwealth v. Kelly, 409 A.2d 21 (Pa. 1979). There, police officers pulled over a car driven by Kelly, who was accompanied by two passengers. Id. at 22. When Kelly and the two other occupants exited the car, an officer shone a flashlight inside the vehicle and observed near the center of the front seat a small amber prescription vial that appeared to contain aluminum foil packets. Id. The officers seized the vial, which contained drugs, and the trial court permitted that evidence to be admitted at Kelly s - 6 -

7 trial. Id. at 23. He was ultimately convicted of possession of a controlled substance. Id. at 22. On appeal to our Supreme Court, the Court agreed with Kelly that the police officers lacked probable cause to seize the vial. The Court reasoned: Reviewing the circumstances surrounding seizure of the controlled drugs from [Kelly s] automobile, this Court finds probable cause to have been lacking at the moment preceding removal of the vial from the automobile. We reach the narrow holding that mere sight of the vial described above under the circumstances here present did not fulfill the probable cause requirement. The evidence contains nothing that might allow us to find that the nature of this vial was immediately apparent : the officers had no information or observations of suspicious conduct or circumstances that would give rise to an inference of possession of controlled substances. An infinite number of commonly merchandised items could have been in the vial in [Kelly s] automobile. We reject as preposterous the notion that anyone possesses expertise to render an opinion on the contents of the vial as seen in appellant's car. The physical evidence should have been suppressed. Id. 23 (emphasis added). Appellant contends that this case is analogous to Kelly because there was no evidence indicating that the men were involved in drug dealing or that they possessed drugs and, thus, there was no basis for Officer Alice to believe that the plastic bag he observed contained contraband. Appellant s Brief at 11. We disagree. The Kelly Court expressly limited its narrow holding to the specific facts of that case, emphasizing that there were no circumstances suggesting that Kelly and his companions possessed drugs. Here, however, there were multiple factors supporting Officer Alice s - 7 -

8 inference that the plastic bag contained contraband. The trial court summarized those circumstances as follows: This is not a case where an officer undertook a search of a vehicle merely upon the observation of a plastic baggie, which, of course, has many lawful uses. The observation of such a baggie protruding from the bottom of the console near [Appellant s] feet, combined with [Appellant s] apparent attempt to conceal something on the floor of the vehicle, his passenger s repeated movements and refusal to keep his hands in the air, and the location of the vehicle in a high narcotics area, all combined to make it immediately apparent to a police officer, experienced in narcotics, that the baggie contained contraband. Therefore, under the plain view doctrine, Officer Alice lawfully pulled on the baggie, revealing the 40 packets of crack cocaine contained therein. Because the removal of that baggie from the console revealed the second baggie and its 41 packets of crack cocaine, and because the third baggie was lying on the floor of the front passenger area of the car, both of those baggies and their contents were also lawfully seized under the plain view doctrine. T.C.O. at 6-7. Based on these circumstances, Kelly is distinguishable, and the trial court properly concluded that Officer Alice possessed probable cause to conduct the warrantless search and seizure of the drugs. Accordingly, the court did not err in denying Appellant s motion to suppress. Appellant next contends that the evidence was insufficient to support his PWID conviction because the Commonwealth did not prove that he constructively possessed the drugs. 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 - 8 -

9 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. It is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence. Additionally, the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Where the contraband a person is charged with possessing is not found on the person of the defendant, the Commonwealth is required to prove constructive possession. 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. We have held that circumstantial evidence is reviewed by the same standard as direct evidence-that is that a decision by the trial court will be affirmed so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Walker, 874 A.2d 667, (Pa. Super. 2005) (citations and internal quotation marks omitted). Appellant contends that the evidence was insufficient to sustain his PWID conviction because the Commonwealth failed to demonstrate that he - 9 -

10 even knew about the drugs located in the vehicle he was driving, let alone that he had the power to control those narcotics. He further avers that because there were other people in the car, [i]t is just as likely that the drugs belonged to someone else situated in the car or to the vehicle s owner. Appellant s Brief at 22. Therefore, Appellant maintains that he did not constructively possess the narcotics, and cites multiple cases to support that claim. 2 However, in all the cases cited by Appellant, the conclusion that constructive possession was not established was premised on the fact that other individuals had greater access to the contraband, or that other individuals had access to the contraband and there was no evidence linking the defendant to the illegal item. This case is distinguishable. First, of all the occupants of the car, Appellant had the greatest access to the two bags of drugs found at his feet, and to the third bag discovered in the passenger side area of the vehicle where officers had observed Appellant reaching moments earlier. Appellant s furtive movements in the location where the third bag of drugs was found also evidenced his knowledge of the 2 See Commonwealth v. Wisor, 353 A.2d 817 (Pa. 1976); Commonwealth v. Armstead, 305 A.2d 1 (Pa. 1973); Commonwealth v. Townsend, 237 A.2d 192 (Pa. 1968); Commonwealth v. Spencer, 621 A.2d 153 (Pa. Super. 1993); Commonwealth v. Ocasio, 619 A.2d 352 (Pa. Super. 1993); Commonwealth v. Rodriguez, 618 A.2d 1007 (Pa. Super. 1993); Commonwealth v. Boatwright, 453 A.2d 1058 (Pa. Super. 1982); Commonwealth v. Hamm, 447 A.2d 960 (Pa. Super. 1982); Commonwealth v. Duffy, 340 A.2d 869 (Pa. Super. 1975)

11 contraband in the vehicle. Moreover, the fact that a large quantity of money was discovered in Appellant s possession indicated that he was engaged in narcotics trafficking, and the fact that he supplied officers with false identification showed a consciousness of guilt. See Commonwealth v. Calderini, 611 A.2d 206, 209 (Pa. Super. 1992) (providing officers with false name and identification was an additional circumstance tending to show consciousness of guilt ). Therefore, we conclude that the Commonwealth proved that Appellant constructively possessed the drugs found in the car he was driving and, thus, his PWID conviction must stand. Finally, Appellant alleges that the court deprived him of a fair trial by permitting the Commonwealth to make prejudicial remarks during its closing argument. Our assessment of this argument is guided by the following standard of review: In reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made. Generally, comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. The initial determination whether the prosecutor's remarks were unfairly prejudicial rests within the sound discretion of the trial court and our inquiry of necessity must turn to whether an abuse of discretion was committed. Commonwealth v. Correa, 664 A.2d 607, 609 (Pa. Super. 1995)

12 Specifically, Appellant takes issue with the following comments by the Commonwealth: [The Commonwealth]: Second thing, keep in mind, because defense counsel has made a big deal of this, [Appellant s] companions, yeah, they re convicted drug dealers. Absolutely. You are known by the company that you keep. They re out there. They re out selling drugs along with [Appellant]. [Defense Counsel]: Objection. [The Court]: Overruled. It s argument. [The Commonwealth]: Look at the cash registers he s got in the car with him. He s got two other guys. Yeah, they re drug dealers. They re all drug dealers. He s got two guys. One had over $500; one has over $200. What does that tell you? Well, it doesn t tell you that it must be because the expert said that, you know, that would be enough money for them to be drug dealers as well, it doesn t tell you that, well, [Appellant], he s got over [one] thousand. These other guys, they ve got this much, it must just be them. It tells you that they got a lot of crack, they re out there, and they re looking to sell it, and they re working together. [Defense Counsel]: Objection. [The Court]: Overruled. N.T. Trial, 2/26/09, at 75-76, Appellant contends that these remarks compelled the jury to convict him simply because he was associated with drug dealers, even though he was not charged with conspiracy, there was no evidence that they were accomplices of one another, and the law provides that mere association does not establish guilt. Appellant s Brief at

13 The Commonwealth, on the other hand, maintains that its comments were an appropriate response to Appellant s closing argument, where his counsel stated, If the possibility exists that those were Randall Surrency s drugs, if that possibility exists, [Appellant is] not guilty, not guilty of [PWID]. N.T. Trial, 2/26/09, at 64. The Commonwealth argues that defense counsel s statement was legally incorrect, while its response was in line with the law. Id. at 17 (citing Commonwealth v. Thompson, 779 A.2d 1195, 1203 (Pa. Super. 2001) (finding it permissible for jury to infer that appellant jointly possessed drugs based on evidence that he was travelling with a known cocaine-dealer in combination with his furtive movements during the traffic stop, his proximity to the cocaine and his admission to possession of the marijuana found in the exact same location as the cocaine )). Similarly to the Commonwealth, the trial court also concludes that the prosecutor s remarks were permissible because they clarified that Appellant could have constructively possessed the drugs in the vehicle even if the jury believed that the other occupants of the car also possessed that contraband. In support, the court cites Commonwealth v. Bricker, 882 A.2d 1008 (Pa. Super. 2005), where we stated that two actors may have joint control and equal access to contraband, and, thus, both may constructively possess the contraband. Id. at 1016 (citing Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005))

14 We agree with the Commonwealth and trial court. Appellant s counsel informed the jury that if the drugs belonged to another occupant of the car, then it could not convict Appellant of PWID. However, Thompson and Bricker both clarify that two or more people may be in joint constructive possession of contraband. The prosecutor s comments explained that concept to the jury. The fact that Appellant was not charged as an accomplice, or with the offense of conspiracy, did not render the prosecutor s remarks inappropriate. The only comment by the prosecutor that was arguably inappropriate was his statement that, [y]ou are known by the company that you keep, referring to the fact that the other occupants of the vehicle were convicted drug dealers. N.T. Trial, 2/26/09, at 75. While we agree with Appellant that this remark inferred guilt by association, we conclude that it was not so prejudicial as to warrant a new trial. As explained in our sufficiency of the evidence discussion, the Commonwealth presented ample proof that Appellant constructively possessed the drugs in the car, and did so with the intent to sell them. Moreover, the court instructed the jury that it must apply the legal principles as explained by the court, not as argued by counsel. N.T. Trial, 2/26/09, at In light of the court s instruction, and the evidence confirming Appellant s guilt, we conclude that he is not entitled to a new trial based on the prosecutor s improper remark. Judgment of sentence affirmed. Judgment Entered

15 Prothonotary Date: 9/5/