J-S55020-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                       Appellant          :
                                          :
           v.                             :
                                          :
JOHN QUACH,                               :
                                          :
                       Appellee           :     No. 370 EDA 2014


            Appeal from the Order Entered December 18, 2013,
           In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. MC-51-CR-0041409-2012.


BEFORE: BOWES, SHOGAN and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED JANUARY 26, 2015

     The Commonwealth of Pennsylvania (“the Commonwealth”) appeals

from the order entered on December 18, 2013, in the Philadelphia County

Court of Common Pleas, that dismissed the criminal charges filed against

John Quach (“Appellee”). We affirm.

     The trial court set forth the underlying facts of this case as follows:

           Appellee, John Quach, was arrested and charged with
     Possession of a Controlled Substance, Possession of a Controlled
     Substance with Intent to Deliver (PWID), and Conspiracy to
     Manufacture, Delivery, or Possession with Intent to Manufacture
     or Deliver. The lower court dismissed the charges for lack of
     evidence on October 3, 2013. On November 7, 2013, the
     Commonwealth re-filed its criminal complaint listing identical
     charges. See Criminal Docket Sheet.

            On December 18, 2013, this Court held a preliminary re-
     file hearing. This Court, after hearing oral argument, agreed with
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     the lower court that the Commonwealth failed to make out a
     prima facie case on all charges.

                                       ***

           The facts underlying the lower court’s decision are as
     follows:

     1. [Appellee’s] brother was seen making a transaction and
     eventually a search warrant was executed at 4651 Rosehill
     Street. Notes of Testimony, Preliminary Hearing Volume I,
     December 18, 2013, p. 5.

     2. In the middle bedroom of the house the officers found 100
     packs of heroin in the closet, as well as a grinder, scale, stamper
     pad, and new and unused packaging. Id. The packaging and
     heroin found in the bedroom matched those from the earlier
     observed sales. Id. In the middle bedroom there was mail in
     [Appellee’s] name. Id[.] at 5-6.

     3. 4651 Rosehill Street is a family home. Id[.] at 6. There are
     five adults living in this house, including three adult children and
     the mother and father. Id.

     4. There was no testimony that [Appellee] resided in the middle
     bedroom. Id[.] at 7. There were no clothes, sneakers, or other
     personal items tying [Appellee] to this room. Id.

     5. At the preliminary re-file hearing, the Commonwealth failed to
     offer sufficient evidence indicating that [Appellee] occupied the
     middle bedroom. Id. [a]t 7-8.

Trial Court Opinion, 2/26/14, at 1-2 (footnotes omitted).

     Following the trial court’s December 18, 2013 order dismissing the

charges against Appellee, the Commonwealth filed a timely appeal.           On

appeal, the Commonwealth raises one issue for this Court’s consideration:

     Should the charges of conspiracy, possession with the intent to
     distribute a controlled substance, and knowing and intentional


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      possession of a controlled substance charges be reinstated
      where the evidence, when properly viewed in the light most
      favorable to the Commonwealth, established a prima facie case
      that [Appellee] conspired to sell heroin out of his family home?

The Commonwealth’s Brief at 1.

      In reviewing the Commonwealth’s issue, we are mindful that:

      The preliminary hearing is not a trial. The principal function of a
      preliminary hearing is to protect an individual’s right against an
      unlawful     arrest and    detention.    At   this   hearing    the
      Commonwealth bears the burden of establishing at least a prima
      facie case that a crime has been committed and that the accused
      is probably the one who committed it. It is not necessary for the
      Commonwealth to establish at this stage the accused’s guilt
      beyond a reasonable doubt. In order to meet its burden at the
      preliminary hearing, the Commonwealth is required to present
      evidence with regard to each of the material elements of the
      charge and to establish sufficient probable cause to warrant the
      belief that the accused committed the offense.

Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991) (citations

omitted).   The Commonwealth’s evidence need only be such that, if

presented at trial and accepted as true, the trial judge would be warranted

in permitting the case to go to the jury.    Commonwealth v. Huggins, 836

A.2d 862, 866 (Pa. 2003). “[I]nferences 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.” Id. “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.” Id. at 865.




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      Upon review of the record, we agree with the trial court and conclude

that the Commonwealth did not establish Appellee’s connection to the

middle bedroom of the house where contraband was discovered, and

therefore, failed to establish a connection among Appellee, the contraband,

and the illicit sale of narcotics. While the police did find a letter addressed to

Appellee in the middle bedroom, the evidence established that the residence

was a family home where Appellee lived with his brothers and parents. We

agree with the trial court that the Commonwealth failed to prove that

Appellee probably committed the crimes of possession of a controlled

substance, PWID, or conspiracy to commit PWID.          The notes of testimony

from the initial preliminary hearing held in Municipal Court on October 3,

2013, reveal at most, one piece of mail found in the middle bedroom bearing

Appellee’s name.     The only other attempt the Commonwealth made to

connect Appellee to the middle bedroom was Police Officer Richard

Fitzgerald’s testimony regarding comments from Appellee’s mother.           N.T.,

10/3/13, at 8-10. Appellee’s counsel immediately objected on the basis of

hearsay, and the trial court sustained the objection.      Id. The questioning

ceased and no other evidence was provided.

      At the preliminary hearing on the refiling of the charges held before

the Philadelphia County Court of Common Pleas, the Commonwealth’s

evidence remained scant:




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     MR. SCIOLLA [Appellee’s Counsel]: And my argument, Judge, is
     the same argument I made [at the initial preliminary hearing
     held on October 3, 2013]. There were three adult children living
     in the house with the mother and father. Nobody has any idea
     how long the drugs were in that bedroom or the mail or if in fact
     that’s my client’s bedroom or the other brother’s bedroom. All
     they have is a family house where, obviously, you’re going to
     find mail in everybody’s name. And they’re suggesting that the
     drugs, the observed sale sold by his brother must be this man’s
     drugs, not the other brother’s, not the father’s, not the mother’s
     and not the brother that was seen selling the drugs.

     MR. OSBORNE [Attorney for the Commonwealth]: And, Your
     Honor, we are at the preliminary hearing stage, so I think the
     inference here and all inferences in our favor is that if the mail is
     in that middle bedroom, that means that it’s his middle
     bedroom. When I go home at night I don’t leave my mail in my
     roommate’s room so –

     THE COURT: But I don’t see any testimony showing that that
     was actually his room.

     MR. OSBORNE: That’s the argument, the mail that was found in
     that room makes that his room, that’s the inference here.

     THE COURT: But there were no clothes, nothing that you could
     show like sneakers or anything that it was this defendant’s?

     MR. OSBORNE: No, the only thing that we have is the mail to tie
     him to that room, mail in his name in that middle bedroom
     where all of this is found. And, also, to say that we have the mail
     in this room, that means he’s in the room, he sees the grinders
     all over the dresser, he sees the scale --

     MR. SCIOLLA: Judge, I got to object.

     THE COURT: Go ahead, go ahead.

     MR. OSBORNE: And he sees everything that’s in the room. If
     he’s in the room, at least with the mail, that means he knows
     what’s going on in this room. And I would suggest at this level
     the inference is that if the mail was found in this middle


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      bedroom, then it’s the middle bedroom. This is just at a
      preliminary hearing stage and with all reasonable inferences –

      THE COURT: But even at that stage, you have to prove that this
      person more likely than not was the person that should be held
      for these offenses. If you have several people living in the house
      and then there’s no other indication, with the search warrant
      when they searched the room, that there was ID, there was
      something, clothes of this particular defendant that was in the
      room, you know, you got several people living in that house.

      Refile is denied.

      (Proceeding concluded.)

N.T. Refile Hearing, 12/18/13, at 6-9.

      The Commonwealth cites to Commonwealth v. Bricker, 882 A.2d

1008 (Pa. Super. 2005), and Commonwealth v. Walker, 874 A.2d 667

(Pa. Super. 2005), as support for its position that the letter, by itself, which

was found in the middle bedroom, was sufficient to establish constructive

possession1 of the contraband and guilty knowledge of Appellee’s brother’s




1
  Because Appellee was not found with contraband on his person, the
Commonwealth was required to establish constructive possession.

      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) (internal
citations and quotation marks omitted).

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sales    of   narcotics.   We   conclude     that   Bricker   and   Walker   are

distinguishable.

        In Bricker, the evidence established that the police executed a search

warrant at the defendant’s house.      It was established that the defendant

lived in that house, and when the police searched it, they discovered a bank

statement addressed to the defendant. Clearly, these facts are analogous to

the case at bar. However, additional evidence produced in Bricker revealed

that the defendant was present in the kitchen when the police entered the

house and that crack cocaine was found on the kitchen floor, on a couch in

the adjacent living room, and in an upstairs bedroom.          Significantly, the

defendant had on his person a crack pipe, a rod used for cleaning a crack

pipe, a filter for a crack pipe, and an electronic scale.      Additionally, the

defendant in Bricker admitted that he was a user of crack cocaine. All of

these additional facts connected the defendant in Bricker to the contraband.

        Similarly, in Walker, the defendant was present in the house when

the police executed a search warrant. When the police entered, the officers

observed three rooms in the basement: an office, a bedroom, and a

bathroom. The defendant had dominion and control over the basement area

where he kept his clothes and mail addressed to him. Inside the basement,

the officers found cameras that monitored the walkway and driveway.           In

the middle of the room was a desk with two piles of cocaine. The officers




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also discovered twenty-nine packets of additional cocaine, clear plastic

baggies, $10,203.00 in U.S. currency, and seven guns.    It was discovered

that two other people lived with the defendant: a sixty-year-old female and

an eighty-year-old male, but these individuals were not arrested.     Upon

defendant’s arrest, he asked to get a shirt and shoes from the basement and

admitted that he resided at the residence with his stepfather. Clearly, the

evidence in Walker linking the defendant to the multiple items of

contraband was more than a piece of mail.

     While the evidence discussed in the aforementioned cases was

reviewed under the more stringent reasonable doubt standard necessary to

sustain a conviction and not, as here, the prima facie standard, the

distinction between the instant case and Walker and Bricker is substantial

regardless of the standard applied.         In both Walker and Bricker,

contraband, clothing, mail, and personal property were discovered in areas

of a house over which it was established the defendants had dominion.

Ultimately, the issue was whether the evidence linked the defendants to

their respective residences.   While the mail, in and of itself, that was

discovered in Walker and Bricker tied the defendants to the house where

contraband was uncovered, those cases do not stand for the proposition that

mail addressed to the dwelling tie a person to an individual bedroom

within the dwelling, especially where the contraband at issue was not




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discovered in a common area or an area where the Commonwealth failed to

show the defendant had access.

        Upon review, we are constrained to agree with the trial court that,

even      when   inferences   are   made    in   favor   of   the   prosecution,   the

Commonwealth established only that Appellee likely resided at 4651 Rosehill

Street.     The Commonwealth, however, did not establish that Appellee

resided in the middle bedroom where the contraband was discovered.                 As

such, pursuant to our standard and scope of review, we agree with the trial

court’s conclusion that the Commonwealth failed to present a prima facie

case.     Accordingly, we affirm the order dismissing the charges against

Appellee.

        Order affirmed.

        Judge Ott joins the Memorandum.

        Judge Bowes files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/26/2015




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