Com. v. Rippy

• Decision Date: 08 April 1999
• Citation: 732 A.2d 1216
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Michael RIPPY, Appellant. (Two Cases).
• Court: Pennsylvania Superior Court

732 A.2d 1216

COMMONWEALTH of Pennsylvania, Appellee, v. Michael RIPPY, Appellant. (Two Cases).

Superior Court of Pennsylvania.

Submitted December 8, 1998.

Filed April 8, 1999.

Robert M. Rosenblum, Stroudsburg, for appellant.

Lisa A. Gillick, Asst. Dist. Atty., Scranton, for Commonwealth, appellee.

Before DEL SOLE, STEVENS and ORIE MELVIN, JJ.

STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Lackawanna County following Appellant's conviction on one count of possession with the intent to deliver a controlled substance, one count of possession of a controlled substance, two counts of criminal conspiracy, one count of theft by unlawful taking, one count of receiving stolen property, and one count of unauthorized use of an automobile. Herein, Appellant contends that the evidence was insufficient to support his convictions and that his sentence was illegal. We affirm Appellant's convictions, but vacate the judgment of sentence and remand for re-sentencing consistent with this decision.

¶ 2 Appellant's first contention is that the evidence was insufficient to support his convictions. "In reviewing the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to see whether there is sufficient evidence to enable the jury to find every element of the crime beyond a reasonable doubt." Commonwealth v. Thomas, 522 Pa. 256, 260, 561 A.2d 699, 702 (1989) (citation omitted). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Sanders, 426 Pa.Super. 362, 627 A.2d 183, 185 (1993) (citation omitted). Although a conviction must be based on "more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty." Commonwealth v. Badman, 398 Pa.Super. 315, 580 A.2d 1367, 1372 (1990) (citation omitted).

¶ 3 Using the aforementioned standard, the evidence adduced at trial discloses the following. On July 9, 1997, Appellant was arrested and charged with various drug-related crimes. Following the denial of his pre-trial motion, Appellant proceeded to a jury trial on February 10, 1998. At trial, Dawn Marie Lee testified as follows: Ms. Lee and her child lived at 532 Emmett Street in Scranton, Pennsylvania, and, during June and July of 1997, Appellant and his friend, Tony, lived with Ms. Lee. While living with Ms. Lee, Appellant and Tony often brought drugs into the house and often dealt drugs on Ms. Lee's front porch. On at least two occasions, Ms. Lee observed Appellant and Tony packaging crack cocaine in small baggies. Ms. Lee was concerned about the drugs being in her house and, at some point, she asked Appellant to remove the drugs. Ms. Lee watched as Appellant took the drugs out to the backyard. While Appellant was living with Ms. Lee, he kept three pit bulls chained in the backyard near a concrete slab upon which a garage once stood. Neighbors would not go near the pit bulls or the concrete slab because they were afraid of the dogs.

¶ 4 Detective Robert Mazzoni also testified at the trial. Specifically, he testified that from July 6 to July 8, 1997, he and his partner, Detective Michael Conrad, watched the residence located at 532 Emmett Street. During this time, the detectives noticed an unusual amount of people going into and out of the residence. As a result, on July 8, 1997, the detectives approached Ms. Lee's residence and, when Ms. Lee answered the door, the detectives asked for permission to search her house. Ms. Lee consented to the search; she specifically consented to Detective Mazzoni's request to search under the master bed. Thereunder, Detective Mazzoni found a shoe box containing Appellant's photo identification, checks from Appellant's personal checking account, and approximately thirty baggies used to package crack cocaine. After speaking with Ms. Lee concerning Appellant's drug activities while living at 532 Emmett Street, Detective Mazzoni decided to search Ms. Lee's backyard. In particular, he decided to search in the area of a concrete slab because Ms. Lee informed him that was the area where she saw Appellant going with the drugs which were removed from her house. During his search, Detective Mazzoni found two baggies, each containing ninety-nine packets filled with rock cocaine, and one large rock of cocaine, weighing forty grams, which had not yet been cut for sale.

¶ 5 Ms. Lee's father, William Lee, Sr., and her brother, William Lee, Jr., were the next to testify. The men testified that they were co-owners of a Chrysler LeBaron, which was discovered missing on July 5, 1997. Both men testified that they never gave anyone permission to drive the vehicle and that, when they spoke to Appellant on the telephone, they asked him whether he had taken the vehicle and Appellant answered affirmatively. William Lee, Jr. testified that the vehicle was parked in front of Ms. Lee's house just prior to its disappearance and that a spare set of keys was left at Ms. Lee's house.

¶ 6 On July 8, 1997, the Lees reported that the Chrysler LeBaron had been stolen. On July 9, 1997, Police Officer Thomas Passmore observed Appellant driving the subject vehicle in Scranton. After stopping the vehicle, Officer Passmore detained the vehicle's occupants, Appellant and his "new" girlfriend, until Detective Mazzoni arrived on the scene. Appellant was then arrested.

¶ 7 At the conclusion of Appellant's trial, he was convicted on all charges. He was then sentenced to five to ten years imprisonment on his possession with the intent to deliver conviction and five to twenty years imprisonment for conspiracy, the sentences to run consecutively. With regard to his possession conviction, Appellant was sentenced to one to two years imprisonment, the sentence to run concurrently to the above sentences, and one to two years imprisonment for conspiracy, the sentence to run concurrently to the above sentences. Appellant was sentenced to one to two years imprisonment for his unlawful taking conviction, one to two years imprisonment for his receiving stolen property conviction, and six months to twelve months imprisonment for his unauthorized use of an automobile conviction, all of the sentences to run concurrently to the above sentences. This timely appeal followed.

¶ 8 Appellant's first argument is that the evidence was insufficient to support his conviction for possession and possession with the intent to deliver a controlled substance.¹ Specifically, he contends that the Commonwealth failed to prove that he possessed the crack cocaine seized from Ms. Lee's backyard.

¶ 9 Possession of a controlled substance can be proven by showing that a defendant actually possessed drugs through direct evidence, such as finding the controlled substance on the defendant's person, or it can be proven by showing that the defendant constructively possessed a controlled substance. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983). In the case sub judice, Appellant was not found in actual possession of the crack cocaine, and, therefore, the Commonwealth was required to show that Appellant constructively possessed the drugs.

[The Supreme Court] ... has defined constructive possession as the `ability to exercise conscious dominion over the illegal substance; the power to control the contraband and the intent to exercise that control.' Constructive possession may be found in one or more actors where the item is in an area of joint control and equal access. [The Supreme Court] has determined that `[a]n intent to maintain a conscious dominion may be inferred from the totality of the circumstances ....[and], circumstantial evidence may be used to establish a defendant's possession of drugs or contraband.'

Commonwealth v. Valette, 531 Pa. 384, 388-389, 613 A.2d 548, 549-550 (1992)(quotations omitted). "Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not." Commonwealth v. Mudrick, 510 Pa. 305, 306, 507 A.2d 1212, 1213 (1986).

[Moreover,] where 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. Ocasio, 422 Pa.Super. 272, 619 A.2d 352, 354-355 (1993) (citations, quotation, and emphasis omitted).

¶ 10 Here, the evidence revealed (1) that packaged crack cocaine was found in the backyard of a house where Appellant was residing, (2) that Appellant kept three pit bulls in the vicinity of the drugs, (3) that, although the backyard was not "fenced in," neighbors and members of the public did not go in Ms. Lee's backyard because they were afraid of the pit bulls, (4) that Appellant kept his car parked in the backyard, (5) that Appellant dealt drugs from the subject house and was seen with the crack cocaine immediately prior to it being hidden in the backyard, (6) that Ms. Lee asked Appellant to remove the crack cocaine from her house, (7) that Ms. Lee observed Appellant as he left the house with the crack cocaine and entered the back yard, and (8) that Ms. Lee saw Appellant with the crack cocaine in the vicinity of the concrete slab.

¶ 11 Examining all of the evidence in its totality, we find that the jury could reasonably conclude that Appellant was aware of the crack cocaine located in Ms. Lee's backyard, that he exercised a conscious dominion over the illegal substance, and that he intended to exercise control over the crack cocaine. We note that Appellant argues that the Commonwealth failed...