J-S39019-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA                ¦    IN THE SUPERIOR COURT OF
                                            ¦          PENNSYLVANIA
                   Appellant                ¦
                                            ¦
      v.                                    ¦
                                            ¦
LADAYA DA SHAE MITCHELL                     ¦
                                            ¦
                                            ¦    No. 1356 WDA 2016

                   Appeal from the Order August 11, 2016
              in the Court of Common Pleas of Cambria County
             Criminal Division at No(s): CP-11-CR-0000708-2016

BEFORE:     BENDER, P.J.E., BOWES, and STRASSBURGER,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
                                    FILED: AUGUST 17, 2017

      I agree with the Majority that the trial court properly held that the

Commonwealth failed to establish a prima facie case against Ms. Mitchell

regarding possession of the heroin recovered from the car near the driver’s

feet. There is no indication in the record that Ms. Mitchell was even aware of

its presence.

      However, I would hold that the evidence, viewed in the light most

favorable to the Commonwealth, was sufficient to allow a finding that Ms.

Mitchell had both the power and intent to control the paraphernalia that was

in plain view next to where she was sitting and that she ultimately handed to

Officer Chiodo.   While the evidence certainly does not compel a finding of

guilt, I believe it is sufficient to survive a petition for a writ of habeas corpus.



*Retired Senior Judge assigned to the Superior Court.
J-S390019-17


Compare Commonwealth v. Stembridge, 579 A.2d 901, 905 (Pa. Super.

1990)   (holding   Commonwealth     established   that   the   passenger   had

constructive possession of contraband recovered from the ground near the

passenger’s door of a parked vehicle); with Commonwealth v. Hamm,

447 A.2d 960, 962 (Pa. Super. 1982) (holding evidence was insufficient to

establish that driver of car was aware of contraband hidden within it).

      Accordingly, I would reverse that portion of the trial court’s order that

dismissed the charges as to the possession of the marijuana paraphernalia.




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