Com. v. Muniz

• Decision Date: 03 September 2010
• Citation: 5 A.3d 345
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Eric Raul MUNIZ, Appellant.
• Court: Pennsylvania Superior Court

5 A.3d 345

COMMONWEALTH of Pennsylvania, Appellee

v.Eric Raul MUNIZ, Appellant.

Superior Court of Pennsylvania.

Argued June 9, 2010.

Filed Sept. 3, 2010.

Joseph M. Sembrot, Harrisburg, for appellant.

Carolyn J. Flannery, Asst. Dist. Atty., Lancaster, for Com., appellee.

BEFORE: MUSMANNO, LAZARUS and OLSON, JJ.

OPINION BY OLSON, J.:

Appellant, Eric Raul Muniz, appeals from the judgment of sentence entered on April 28, 2009, sentencing him to incarceration for convictions of possession with intent to deliver cocaine, possession with intent to deliver marijuana, and possession of drug paraphernalia.¹ For the following reasons, we affirm.

The trial court summarized the relevant facts and procedural history of this matter as follows:

The evidence presented at trial established that [Appellant] was the only person in the first floor apartment at 446 Fremont Street on the morning of July 12, 2007, when agents from the U.S. Marshall Service, Lancaster City Police and Lancaster County Sheriff's Deputies visited the property looking for an individual named Timothy Baldwin, as part of the Fugitive Task Force. (N.T. at 31, 32, 34, 46, 63, 90-91). The lead officer,Deputy Alan Stiffler, knocked on the door and then heard someone running up the stairs of the apartment. (N.T. at 32-33, 44, 46). Baldwin was considered violent, and the officers identified themselves and entered the property. (N.T. at 33, 39). [Appellant] explained that Baldwin did not live at the address at that time, and then consented to a search of the property [for Baldwin]. (N.T. at 34, 49, 65). Baldwin was not found. (N.T. at 35, 89). The search yielded a baggie of marijuana, found sticking out from between the mattress and a box spring, as well as "numerous bags of drugs with cocaine, marijuana, and ... a blue bag underneath the mattress with letters on it, and a black handgun." (N.T. at 50, 53, 54, 59, 70). Officers examined the mattress based upon prior experience where fugitives have hollowed out mattresses of box springs to hide themselves; a bulge in the mattress indicated to the officers that someone might be hiding there. (N.T. at 51-52, 65-66, 67).

The drugs, blue bag and handgun were ultimately brought to the attention of Trooper Jason Laudermilch ² of the Pennsylvania State Police (PSP) ( see generally N.T. at 87-88, 95, 97 and 146), who applied for a warrant to search the rest of the property at 446 Fremont Street. (N.T. at 98, 100). The search warrant identified [Appellant] as the owner/occupant/possessor of the property and authorized officers to search for controlled substances, money, paraphernalia, and indicia of occupancy, among other things. (N.T. at 102, Cmwlth. Ex. 11). Including the items seized on July 12, 2007 and those obtained pursuant to the search warrant, Trooper Laudermilch took possession of 43 bags containing crack cocaine, three larger bags of crack cocaine, four bags of marijuana, a blue cloth bag containing more plastic bags of marijuana, a loaded handgun, a wallet containing [Appellant's] driver's license, $608 in cash, 70 bullets for the handgun, a grey plastic digital scale, more empty plastic bags, paperwork in [Appellant's] name and addressed to him at 446 Fremont Street, and photographs of [Appellant] outside of 446 Fremont Street. (N.T. at 104-107, 118-229, 120, 151, Cmwlth. Ex. 12-28). When tested, the cocaine amounted to 51.4 grams and the marijuana amounted to 185 grams. (N.T. at 130, 131). [Appellant] was arrested shortly thereafter.

[At trial,] Detective Michael Neff, with the Lancaster County Drug Enforcement Task Force, qualified as an expert in drug trafficking and drug paraphernalia, [and] testified that, based on the quantity of the controlled substances, the packaging, and the presence of paraphernalia, he believed that the items seized from [Appellant's] apartment were "possessed with intent to deliver or sell." (N.T. at 183).

Trial Court Opinion, 12/10/09, at 3-4.

On January 12, 2009, Appellant's counsel presented a motion to suppress which was denied. Appellant then proceeded to trial, but on January 13, 2009, a mistrial was declared. Appellant underwent a new trial and was convicted on January 16, 2009. He was sentenced on April 28, 2009. This appeal followed.

Appellant presents three issues on appeal:

1. Whether the Commonwealth failed to present sufficient evidence at trial to prove Appellant's guilt beyond a reasonable doubt?

2. Whether the jury's guilty verdicts in this case were against the weight of theevidence, and thus shocked one's sense of justice, thereby necessitating the award of a new trial?

3. Whether the trial court erred in denying Appellant's Motion to Suppress narcotics and drug paraphernalia seized during the attempted execution of an arrest warrant at a third party's residence?

Appellant's Brief at 5.³

In Commonwealth v. Hennigan, 753 A.2d 245 (Pa.Super.2000), our Court set forth the applicable standard for assessing a challenge to the sufficiency of the evidence:

"The standard we apply in reviewing the sufficiency of 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 factfinder to find every element of the crime beyond a reasonable doubt." Commonwealth v. Heberling, 451 Pa.Super. 119, 678 A.2d 794, 795 (1996) ( citing Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994)). In applying [the above] test, we may not weigh the evidence and substitute our judgment for that of 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 week and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. Commonwealth v. Cassidy, 447 Pa.Super. 192, 668 A.2d 1143, 1144 (1995) (citations omitted). 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. Commonwealth v. Valette, 531 Pa. 384, 613 A.2d 548, 549 (1992) (citations and quotation marks omitted). Commonwealth v. Vetrini, 734 A.2d 404, 406-407 (Pa.Super.1999).

Hennigan, 753 A.2d at 253 (parallel citations omitted).

In this matter Appellant challenges the sufficiency of the evidence for his convictions of possession with intent to deliver cocaine, possession with intent to deliver marijuana, and unlawful possession of drug paraphernalia. Appellant's Brief at 11. In particular, Appellant alleges that the evidence was insufficient to establish possession of the drugs and paraphernalia, which, as is implied by their titles, is a required element for each of the crimes. ⁴ According to Appellant, though the drugs, gun, and paraphernalia resulting in his convictions were found in the apartment where he was staying, they were not found on his person or within his control such that he possessed the materials. Id. According to Appellant, he was merely present at the scene of the crime which is insufficient evidence of possession. Id.

Under Pennsylvania law,

[c]onstructive possession is an inference arising from a set of facts that possessionof 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. Thompson, 779 A.2d 1195, 1199 (Pa.Super.2001) (internal citations and quotations omitted).

In this matter the evidence established that Appellant was the sole occupant of the apartment where the drugs, gun, and paraphernalia were found. In addition, Appellant's wallet containing over $600 in cash and other identifying documents were found in the bedroom in which the materials were discovered. Consequently, we agree with the trial court that, though the drugs, gun, and paraphernalia were not found on Appellant's person, the evidence in this matter, especially when considered in light of our standard of review, is more than sufficient to establish Appellant's constructive possession of the materials. Indeed, the court in this matter no doubt considered the possibility that Baldwin could have placed the drugs in Appellant's room without Appellant's knowledge. However, based upon the court's determination, it is equally clear that the court rejected that notion. Given our standard of review, we are bound by that determination. Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408 (2003). Appellant's first issue on appeal lacks merit.

Next, Appellant argues that his convictions were against the weight of the evidence. Appellant's Brief at 15-18. Pursuant to Pennsylvania Rule of Criminal Procedure 607, challenges to the weight of the evidence must be raised with the trial judge in a motion for a new trial orally or written before sentencing, or in a post sentence motion. See Pa.R.Crim.P. 607. In this matter the record reflects that Appellant failed to properly raise the claim with the trial court pursuant to Rule 607. Consequently, the claim is waived.

Appellant's third issue challenges the trial court's denial of his motion to suppress. Appellant's Brief at 18-33. When reviewing the denial of a motion to suppress, we must first ascertain whether the record supports the court's factual findings. Commonwealth v. Dangle, 700 A.2d 538, 539 (Pa.Super.1997). In considering those factual findings, we must consider only the evidence...