Commonwealth v. Hopkins

• Decision Date: 20 May 2013
• Citation: 2013 PA Super 122,67 A.3d 817
• Parties: COMMONWEALTH of Pennsylvania v. William HOPKINS, Appellant.
• Court: Pennsylvania Superior Court

67 A.3d 817

2013 PA Super 122

COMMONWEALTH of Pennsylvania

v.William HOPKINS, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 7, 2013.

Filed May 20, 2013.

Jessica L. Herndon, and Suzanne M. Swan, Public Defender, Pittsburgh, for appellant.

Michael Streily, Deputy District Attorney, Francesco L. Nepa, Assistant District Attorney, Pittsburgh, for Commonwealth.

BEFORE: FORD ELLIOTT, P.J.E., BOWES and DONOHUE, JJ.

OPINION BY FORD ELLIOTT, P.J.E.:

William Hopkins appeals from the judgment of sentence entered on October 24, 2011 in the Court of Common Pleas of Allegheny County. Following a jury trial, appellant was convicted of carrying a firearm without a license, possession with intent to deliver (“PWID”), and simple possession. Thereafter, the trial court also found appellant guilty of a summary parking offense. We affirm.

The facts, as aptly summarized by the trial court, are as follows:

At approximately 9:15 p.m. on December 23, 2009, Detective Jason Moss, a trained narcotics detective with the City of Pittsburgh Police Department, observed an individual pacing around a grocery store parking lot and making calls on a cellular phone. Detective Moss recognized that man from a previous encounter a month earlier as a drug user. Detective Moss testified that, after making calls, the man walked to the side of a building and began counting his money. Detective Moss then observed a car pull up on a side street near the man and park against traffic under a “No Parking” sign. The Detective contacted his partners, who approached the vehicle. Upon observing the police approaching, the known drug user turned away from the car, fled the scene and escaped apprehension.

Detective Charles Higgins, one of Detective Moss's partners that evening, testified that as he approached the car, he observed a juvenile later identified as [T.H.] throw an open brick of heroin to the car floor with his right hand. Detective Edward Fallert also observed [T.H.] throw a brick of heroin onto the floor of the vehicle. [T.H.] was arrested and the heroin was seized. As he approached the car, Detective Higgins also observed a loaded Smith & Wesson 0.38 caliber firearm between [T.H.'s] seat and the center console.

Detective Mark Goob approached the driver's side of the vehicle and observed Appellant, the driver, start to reach down between the console and the driver's seat and push his hand down into that area. Detective Goob ordered Appellant out of the vehicle. In the vehicle, between the driver's seat and the center armrest, Detective Goob recovered two additional bricks of heroin. Counsel for Appellant stipulated that whoever possessed the heroin in the car did so with intent to distribute it, and not for personal use. Detective Fallert recovered $361.00 in cash and two cellular phones from Appellant pursuant to a search incident to arrest.

Trial court opinion, 4/2/12 at 3–4. A total of 150 stamp bags of heroin were found inside the vehicle; 50 were in the brick thrown by T.H. onto the floor on the passenger side of the vehicle and 100 were in the two bricks located between the driver's seat and the center console.

Appellant was charged with one count each of person not to possess a firearm, 18 Pa.C.S.A. § 6105(a)(1), carrying a firearm without a license, 18 Pa.C.S.A. § 6106(a)(1), PWID (heroin), 35 P.S. § 780–113(a)(30), and possession of a controlled substance (heroin), 35 P.S. § 780–113(a)(16). Appellant was also charged with one summary traffic count of prohibitions in specified places, 75 Pa.C.S.A. § 3353. Subsequently, the trial court granted appellant's motion to sever the charge of person not to possess a firearm. On May 11, 2011, a jury trial was held; appellant failed to return to the courthouse after jury selection and, as a result, was tried in absentia. Appellant was found guilty of all counts, and the Honorable Jill E. Rangos found appellant guilty of the summary traffic count.

On October 17, 2011, a sentencing hearing was held in absentia. The Commonwealth had provided notice of its intention to seek the two separate mandatory minimum sentences applicable to the PWID count. Specifically, the two-year mandatory minimum sentencing enhancement pursuant to 18 Pa.C.S.A. § 7508(a)(7)(i) by virtue of the heroin weighing more than one gram, and the five-year mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9712.1 because a gun was in close proximity to the drugs. Appellant was sentenced to 40 to 80 months' imprisonment for carrying a firearm without a license and a consecutive 7 to 15–year term for PWID; no further penalties were imposed on the remaining counts. Thereafter, on October 24, 2011, appellant was resentenced to the same sentence but provided credit for 8 days of time served.

Notice of appeal was filed on November 22, 2011. Appellant complied with the trial court's order to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion. The following issues have been presented for our review:

I. DID THE TRIAL COURT VIOLATE THE PROHIBITION ON DOUBLE JEOPARDY BY IMPOSING TWO MANDATORY MINIMUM SENTENCES AT THE SAME COUNT OF [PWID], THEREBY RENDERING [APPELLANT'S] SENTENCE ILLEGAL?

II. DID THE COMMONWEALTH PROVE BEYOND A REASONABLE DOUBT THAT [APPELLANT] WAS IN JOINT CONSTRUCTIVE POSSESSION OF THE FIREARM AND HEROIN ALONG WITH HIS JUVENILE PASSENGER, T.H., WHO HAD ENTERED AN ADMISSION IN JUVENILE COURT TO POSSESSING THESE ITEMS, OR THAT [APPELLANT] WAS ACTING AS AN ACCOMPLICE OF T.H.?

Appellant's brief at 6.¹

We begin our review with the second issue presented concerning the sufficiency of the evidence. Appellant argues that the Commonwealth failed to establish his constructive possession of the heroin and the firearm found in the vehicle that he was driving at the time of arrest. No relief is due.

Our standard of review in a sufficiency of the evidence challenge is to determine if the Commonwealth established beyond a reasonable doubt each of the elements of the offense, considering all the evidence admitted at trial, and drawing all reasonable inferences therefrom in favor of the Commonwealth as the verdict-winner. The trier of fact bears the responsibility of assessing the credibility of the witnesses and weighing the evidence presented. In doing so, the trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Newton, 994 A.2d 1127, 1131 (Pa.Super.2010), appeal denied,608 Pa. 630, 8 A.3d 898 (2010), quoting Commonwealth v. Pruitt, 597 Pa. 307, 318, 951 A.2d 307, 313 (2008) (citations omitted). The Commonwealth may sustain its burden by means of wholly circumstantial evidence, and we must evaluate the entire trial record and consider all evidence received against the defendant. Commonwealth v. Markman, 591 Pa. 249, 270, 916 A.2d 586, 598 (2007).

As appellant was not in physical possession of the contraband, the Commonwealth was required to establish that he had constructive possession of the seized items to support his convictions.

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. Brown, 48 A.3d 426, 430 (Pa.Super.2012), appeal denied,––– Pa. ––––, 63 A.3d 1243 (2013) (internal quotation marks and citation omitted). Additionally, it is possible for two people to have joint constructive possession of an item of contraband. Commonwealth v. Sanes, 955 A.2d 369, 373 (Pa.Super.2008), appeal denied,601 Pa. 696, 972 A.2d 521 (2009).

Appellant suggests that he was unaware of any criminal activity and was merely driving the vehicle. Appellant contends that T.H., the juvenile passenger, was the sole possessor of the drugs and gun. Appellant directs our attention to T.H.'s testimony at trial and his admissions in juvenile court.² The jury, however, did not credit T.H.'s testimony. Again, the finder of fact is free to believe some, all, or none of the evidence presented. Newton, supra.

When viewed in their totality, the facts and circumstances support the finding that appellant was in constructive possession of the contraband and the weapon. Minutes after a known drug user was observed making a cell phone call, pacing in a vacant lot, and counting money, appellant drove his vehicle the wrong way into a dark side street. As the police approached, the known drug user fled. When the transaction was thwarted, Detective Goob, a ten-year veteran of the narcotics unit, observed appellant attempt to hide two bricks of heroin in the space between the driver's seat and the center console of the vehicle he was driving. The detective also observed T.H. throw a brick of heroin onto the floor of the vehicle. The firearm was found within arms-length of where appellant was seated. Additionally, upon arrest, appellant was found with two cell phones and $361 in cash; the juvenile had no money on his person. Appellant is entitled to no relief.

Next, appellant challenges his sentence on the count of PWID. Appellant does not dispute that the mandatory minimum sentencing statutes applied were both applicable. (Appellant's brief at 18.) Rather, he argues that he cannot receive two mandatory minimum sentences at his conviction for PWID. Specifically, appellant claims that the imposition of two mandatory sentences, whether concurrently or consecutively, at one count violates the prohibition against double jeopardy. ( Id. at 19.) Appellant avers that his sentence is illegal and must be vacated. We...