J-A08026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    QUINN L. WISE                              :   No. 1366 EDA 2016

                       Appeal from the Order April 8, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000732-2016


BEFORE:      PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:                  FILED JULY 12, 2017

        As the Commonwealth presented sufficient evidence to establish a

prima facie case for the charged offenses, I respectfully dissent from the

Majority’s decision to affirm the trial court’s denial of the Commonwealth’s

motion to reinstate the charges filed against Appellee Quinn L. Wise.

        Our standard of review is well-settled:

        The    question    of   the evidentiary sufficiency  of   the
        Commonwealth's prima facie case is one of law as to which this
        Court's review is plenary.

        At the pre-trial stage of a criminal prosecution, it is not
        necessary for the Commonwealth to prove the defendant's guilt
        beyond a reasonable doubt, but rather, its burden is merely to
        put forth a prima facie case of the defendant's guilt. A prima
        facie case exists when the Commonwealth produces evidence of
        each of the material elements of the crime charged and
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A08026-17


      establishes sufficient probable cause to warrant the belief that
      the accused committed the offense. The evidence need only be
      such that, if presented at trial and accepted as true, the judge
      would be warranted in permitting the case to go to the jury.
      Moreover, inferences reasonably drawn from the evidence of
      record which would support a verdict of guilty are to be given
      effect, and the evidence must be read in the light most favorable
      to the Commonwealth's case.

Commonwealth v. Nieves,          876    A.2d    423, 424   (Pa.Super.    2005).

Questions regarding the weight and credibility of evidence must be resolved

by the fact-finder at trial, not at the preliminary hearing. Commonwealth

v. Landis, 48 A.3d 432, 444 (Pa.Super. 2012).

      Appellee was charged with hindering apprehension or prosecution (18

Pa.C.S. § 5105) and several violations of the Uniform Firearms Act (VUFA):

possessing a firearm with an altered serial number (18 Pa.C.S. § 6110.2),

possession of a firearm not to be carried without a license (18 Pa.C.S. §

6106(a)), and carrying a firearm in public in Philadelphia (18 Pa.C.S. §

6108).   The trial court quashed the firearm charges as it specifically

concluded that the prosecution failed to produce any evidence that Appellee

possessed the gun used in the homicide.         However, the record does not

support this conclusion.

      Although Appellee was not found in actual possession of the firearm,

the   Commonwealth     argued   that    there   was   evidence   that   Appellee

constructively possessed the firearm. To prove constructive possession, the

Commonwealth must show that the accused “exercise[d] a conscious

dominion over the illegal [contraband.]” Commonwealth v. Valette, 531



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Pa. 384, 388, 613 A.2d 548, 550 (1992). Conscious dominion is the “power

to control the contraband and the intent to exercise that control.”       Id.

(citing Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134

(1983)).

      The prosecution presented a prima facie case that supports an

inference that Appellee had constructive possession of the firearm in

question. Upon investigating the shooting death of Alexandro Fauntleroy, Jr.,

officers discovered the unlocked Buick Enclave twenty feet from the

decedent’s body and noticed the keys were still in the ignition and a firearm

was laying on the front passenger seat floor. The officers then closed off the

surrounding area as a crime scene. Several hours after the murder, in the

middle of the night, Appellee walked past the crime scene tape meant to

prevent access to the block and opened the door of the Buick Enclave.

When questioned by officers, Appellee falsely claimed that her name was

Nicolette Wise and gave the officers her sister’s driver’s license.

      Appellee subsequently admitted that she came to remove the SUV

from the crime scene as her boyfriend, Leslie Williams, had called her in the

middle of the night and urged her to retrieve the SUV from the block as

there were “a lot of cops around” the car. N.T., 1/20/16, at 17. Williams

admitted to Appellee that he had left the SUV parked on that block when

“things got crazy.” N.T., 1/20/16, at 17. After Appellee admitted to giving a

false name, she conceded that the SUV belonged to her, but it indicated that

was registered to her sister. Although Appellee denied knowing a gun was in

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her SUV and claimed she had never seen Williams with a firearm, Appellee’s

DNA was found on the magazine of the gun found in the SUV. That gun had

an obliterated serial number and was determined to be the weapon used in

the homicide of Fauntleroy.

      Viewing the evidence presented at the preliminary hearing in the light

most favorable to the Commonwealth, I conclude the prosecution met its

burden of establishing at least a prima facie case that Appellee had

constructive possession of the firearm with the obliterated serial number in

the SUV and was not licensed to carry the firearm or permitted to possess it

in public in Philadelphia.

      For the foregoing reason, I dissent.




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