Commonwealth of Pa. v. Estepp

• Decision Date: 18 May 2011
• Citation: 17 A.3d 939,2011 PA Super 53
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Vernon Lee ESTEPP, Appellant.
• Court: Pennsylvania Superior Court

17 A.3d 939

2011 PA Super 53

COMMONWEALTH of Pennsylvania, Appellee

v.Vernon Lee ESTEPP, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 11, 2011.Filed March 18, 2011.Reargument Denied May 18, 2011.

Burton A. Rose, Philadelphia, for appellant.Hugh J. Burns, Jr., Assistant District Attorney, and Mary Huber, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.BEFORE: STEVENS, P.J., FREEDBERG, and PLATT,^* JJ.OPINION BY STEVENS, P.J.:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County after a jury found Appellant Vernon Lee Estepp guilty of possession with intent to deliver a controlled substance (PWID) ¹ and possession of drug paraphernalia.² We affirm.

The relevant facts and procedural history of this case are as follows: Philadelphia Police Officer Jeffrey Cujdik, a member of the Narcotics Task Force, received information from a confidential source that a white male known as “Vern,” who was approximately 50 years old, was selling prescription drugs from a residence located at 2828 Agate Street in Philadelphia. As a result, on September 12, 2006, Officer Cujdik arranged for a different informant to make a controlled drug buy at this location. In preparation for this operation, Officer Cujdik searched the informant for contraband and provided him with $20 in prerecorded money to buy pills.

After Officer Cujdik dropped the informant off near Appellant's residence, the informant knocked on Appellant's front door. Officer Cujdik observed Appellant open the front door, briefly converse with the informant, and bring the informant into his home. Within minutes, the informant exited the building and Appellant peeked out the door to look up and down the street. Upon returning to the unmarked police car, the informant gave Officer Cujdik two pills he had purchased, later established to be Oxycodone.³

Based on this controlled purchase, Officer Cujdik obtained a search warrant for Appellant's residence on 2828 Agate Street. Although further investigation revealed Appellant did not own the house, officers discovered that Appellant was registered to vote at this location. On September 13, 2006, officers executed the search warrant and took Appellant into custody. A search of Appellant's person revealed $421 cash, a key to the 2828 Agate Street residence, a photo identification card which listed 2828 Agate Street as Appellant's address, and a pack of Newport cigarettes.

Upon entering the residence, officers searched under a bed in the living room and discovered eight (8) Xanax pills inside a shoe, eighteen (18) clear plastic bags of cocaine in a Newport cigarette box, and numerous unused Ziploc packets similar to those containing the cocaine. On an end table next to the bed, police found two billing statements in Appellant's name for the 2828 Agate Street address. Police found two other bedrooms in the home, but noted that they did not appear to be in habitable condition.

On January 30, 2008, a jury convicted Appellant of PWID and possession of drug paraphernalia. On July 29, 2008, the trial court sentenced Appellant to three (3) to six (6) years imprisonment, followed by two years probation. Appellant filed a post-sentence motion, which the trial court denied on October 28, 2008. Appellant subsequently filed a timely appeal and properly filed a Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

However, on February 12, 2009, Appellant filed a Motion to Remand to the trial court for an evidentiary hearing to investigate allegations of police misconduct on the part of Officer Cujdik. Appellant cited two newspaper articles, allegedly published on February 10, 2009 in the Philadelphia Inquirer and the Philadelphia Daily News, revealing Officer Cujdik was under federal and state investigation after a former confidential informant accused Cujdik of falsifying evidence in his narcotics investigations. On May 12, 2009, in a per curiam order, this Court held the Motion to Remand under advisement and directed the trial court to report the status of the investigation. After the trial court reported the investigation was still ongoing and under the control of federal authorities, this Court directed the trial court to file an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant raises the following issues on appeal:

1. Should this case be remanded to the lower court for hearings [regarding] recent police corruption activities concerning the arresting and investigating narcotics officers?

2. Was the evidence sufficient to prove that Appellant constructively possessed controlled substances as charged?

3. Did the lower court err in allowing a narcotics officer to testify about hearsay from a “confidential informant” that identified Appellant as a drug dealer at this location?

4. Did the lower court err in refusing to grant Appellant's request to charge the jury as to “mere presence”?

Appellant's Brief, at 3.⁴

In requesting a remand for a hearing to investigate Officer Cujdik's alleged misconduct, Appellant relies on this Court's decision in Commonwealth v. Rivera, 939 A.2d 355 (Pa.Super.2007), in which this Court remanded the case for an evidentiary hearing based on after-discovered evidence showing police chemist Colleen Brubaker was stealing drugs from the police lab for her personal use. However, in that case, Rivera cited to newspaper articles that reported that Brubaker had actually been arrested and charged with theft of the drugs. Id. at 357. In contrast, Appellant cites to newspaper articles from February 2008 which merely state that Officer Cujdik was under investigation for misconduct. Moreover, there are no dates on the newspaper articles except those handwritten by an unknown individual. As such, Appellant can only speculate about possible corruption that has not been corroborated. We specifically hold that the newspaper articles Appellant offers in this case are not sufficient to meet the test for after-discovered evidence. Accordingly, Appellant's Motion to Remand is denied.

Appellant next claims that there was insufficient evidence to establish that he constructively possessed a controlled substance. The standard for evaluating sufficiency claims 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 finder 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. Brooks, 7 A.3d 852, 856–57 (Pa.Super.2010) (citations omitted).

To sustain a conviction for PWID, “the Commonwealth must prove both the possession of the controlled substance and the intent to deliver the controlled substance.” Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super.2008) (citations omitted). If the contraband is not found on the appellant's person, the Commonwealth must prove that the appellant had constructive possession of the contraband, which has been defined as the “ability and intent to exercise control over the substance.” Commonwealth v. Hutchinson, 947 A.2d 800, 806 (Pa.Super.2008) (citations omitted). The Commonwealth may establish constructive possession through the totality of the circumstances. Commonwealth v. Muniz, 5 A.3d 345, 349 (Pa.Super.2010) (citing Commonwealth v. Thompson, 779 A.2d 1195, 1199 (Pa.Super.2001)). See Commonwealth v. Walker, 874 A.2d 667 (Pa.Super.2005) (finding the defendant exercised dominion and control over illegal drugs found in a home office along with mail addressed to the defendant and a closet of his clothes).

Appellant claims his conviction should not stand as he was “merely present” at the home and there was no evidence connecting him to the seized drugs. We disagree. Appellant clearly lived at the residence at 2828 Agate Street as he possessed a key to the front door, his personal identification listed this home as his address, and he was registered to vote there. Upon a search of Appellant's residence, police found illegal drugs underneath a bed in the only room suitable for overnight accommodation. Police recovered Xanax pills in a shoe hidden under the bed along with bags of cocaine stored in a Newport cigarette box, which was the same brand of cigarettes that Appellant carried on his person. On the nightstand next to the bed, police found two billing statements addressed to Appellant at the 2828 Agate Street address. As such, it is reasonable to infer that Appellant exercised control and dominion over the illegal drugs under his bed.

We are not persuaded by Appellant's allegation that others may have had access to the drugs as this Court has found that multiple individuals may have joint control and equal access and thus both may constructively possess the contraband. Commonwealth v. Sanes, 955 A.2d 369, 373 (Pa.Super.2008) (citations omitted). Accordingly, when viewing the totality of the circumstances, we find the trial court did not err in finding sufficient evidence to...