J-S08019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 CHRISTOPHER THOMAS TWIGGER              :   No. 823 WDA 2019

                Appeal from the Order Entered April 24, 2019
  In the Court of Common Pleas of Westmoreland County Criminal Division
                    at No(s): CP-65-CR-0003937-2018

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 CHRISTOPHER THOMAS TWIGGER              :   No. 824 WDA 2019

                Appeal from the Order Entered April 24, 2019
  In the Court of Common Pleas of Westmoreland County Criminal Division
                    at No(s): CP-65-CR-0003938-2018


BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.:                       FILED MARCH 30, 2020

      The Commonwealth appeals from the orders of the Court of Common

Pleas of Westmoreland County of April 24, 2019, dismissing all charges at both

Common Pleas dockets against Christopher Thomas Twigger (Appellee). The

Commonwealth asks this Court to reverse the dismissals. We affirm.
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        On July 20, 2018, in Latrobe, Pennsylvania, a resident called the City of

Latrobe Police to report a seemingly-abandoned backpack on the sidewalk.

The resident told police that she noticed the backpack at 9:00 that morning;

it was still there when she called to make the report at approximately 2:30

that afternoon.

        The   police    seized    the    backpack,   which   contained   Appellee’s

identification, two prescription bottles with his name on them, marijuana, and

heroin. A warrant was issued for Appellee’s arrest. During execution of the

warrant, officers allegedly found and seized drug paraphernalia at Appellee’s

apartment.     Appellee was charged at trial docket CP-65-CR-0003938-2018

with possession of a controlled substance, possession with intent to deliver a

controlled substance, and possession of drug paraphernalia,1 for the contents

found in the bookbag. He was separately charged at trial docket CP-65-CR-

0003937-2018 with possession of drug paraphernalia, for the evidence seized

from his apartment.

        On December 14, 2018, Appellee filed an omnibus motion in both cases

seeking dismissal of all charges.              He argued the Commonwealth had

insufficient evidence to establish his possession of the drugs found in the

backpack and that the arrest warrant leading to the paraphernalia prosecution




____________________________________________


1   35 P.S. § 780-113(a)(16), (30), (31).

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was unsupported by probable cause. On February 25, 2019, the trial court

held a hearing on the motion.

       On April 24, 2019, the trial court granted Appellee’s motions and

dismissed all charges. On May 24, the Commonwealth filed the present timely

appeal.2 On May 30, the trial court ordered a statement pursuant to Pa.R.A.P.

1925(b), which the Commonwealth timely filed on June 12.

       On July 30, 2019, the trial court filed its opinion. In its opinion, the trial

court noted the lack of evidence of either actual or constructive possession of

the backpack and its contents by Appellee. The trial court found the lack of

evidence as to possession of the backpack meant not only that the

Commonwealth failed to establish a prima facie case as to its contents, but

also that the police lacked reasonable suspicion that Appellee had committed

a crime. The court thus further concluded that the arrest warrant was invalid

and its fruit must be suppressed. Trial Ct. Op., 7/30/19, at 4.

       The Commonwealth presents the following questions for our review:

       Whether the [Trial] Court erred as a matter of law by granting
       dismissal of the [apartment paraphernalia case] by only applying
       the legal standard for a prima facie case to the facts of the
       [backpack case,] not the distinct and lower standard of probable
       cause where there was probable cause to arrest [Appellee] and
       thus, the contraband was seized subject to a lawful search.
____________________________________________


2 We note that the Commonwealth filed separate notices of appeal, per
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (holding that “where
a single order resolves issues arising on more than one docket, separate
notices of appeal must be filed for each of those cases”). The Commonwealth
certified pursuant to Pa.R.A.P. 311(d) that the orders would substantially
hinder and/or terminate its prosecutions.

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      Whether the [Trial] Court erred as a matter of law by finding the
      Commonwealth failed to establish a prima facie case [in the
      backpack case] when the Commonwealth established a prima
      facie case that . . . Appellee possessed the contraband located
      within the backpack given the totality of the case, including indicia
      of . . . Appellee’s ownership of other items found within the
      backpack where the contraband that was the basis of the charges
      was also located.

Commonwealth’s Brief at 1.

      The Commonwealth argues that the trial court erroneously applied the

legal standard for a prima facie case to both prosecutions, where the court

should have evaluated the paraphernalia case under the lower standard of

probable cause. The Commonwealth also argues that it did establish a prima

facie case in the prosecution arising from the backpack and its contents, given

the totality of the evidence and reasonable inferences therefrom.

      “A pre-trial habeas corpus motion is the proper means for testing

whether the Commonwealth has sufficient evidence to establish a prima facie

case.” Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016)

(citation omitted).   This Court reviews whether a prima facie case was

established by examining the evidence and reasonable inferences derived

therefrom in a light most favorable to the Commonwealth. Commonwealth

v. James, 863 A.2d 1179, 1182 (Pa. Super. 2004) (en banc). “[I]t is settled

that the evidentiary sufficiency, or lack thereof, of the Commonwealth’s prima

facie case for a charged crime is a question of law as to which an appellate

court’s review is plenary.” Commonwealth v. Karetny, 880 A.2d 505, 513


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(Pa. 2005).     “To demonstrate that a prima facie case exists, the

Commonwealth must produce evidence of every material element of the

charged offense(s) as well as the defendant’s complicity therein.” Dantzler,

135 A.3d at 1112.

     Because the Commonwealth did not establish Appellee’s actual

possession of the backpack, the Commonwealth could only proceed under a

constructive possession theory.     “Where a defendant is not in actual

possession of the prohibited items, the Commonwealth must establish that

the defendant had constructive possession to support the conviction.”

Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa. Super. 2018), appeal

denied, 202 A.3d 42 (Pa. 2019). To do so, “the Commonwealth must establish

facts from which the trier of fact can reasonably infer that the defendant

exercised dominion and control over the contraband at issue.”       Id. at 37.

“[K]nowledge of the existence and location of the contraband is a necessary

prerequisite to proving the defendant’s intent to control, and, thus, his

constructive possession.” Id.

     This Court has defined constructive possession as follows:

     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.


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Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (quotation

omitted).

      “Probable cause to arrest exists when the facts and circumstances within

the police officer’s knowledge and of which the officer has reasonably

trustworthy information are sufficient in themselves to warrant a person of

reasonable caution in the belief that an offense has been committed by the

person to be arrested.” In re C.C.J., 799 A.2d 116, 121 (Pa. Super. 2002),

quoting Commonwealth v. Gwynn, 723 A.2d 143, 148 (Pa. 1998).

“Probable cause justifying a warrantless arrest is determined by the ‘totality

of the circumstances.’” Id., quoting Commonwealth v. Myers, 728 A.2d

960, 962 (Pa. Super. 1999).

      Here, the totality of the circumstances does not establish that anyone

exercised conscious dominion over the backpack or its contents. See Parrish,

191 A.3d at 36; Brown, 48 A.3d at 430; Trial Ct. Op. at 4. At the time the

police became aware of the backpack, it had already been unattended on the

sidewalk for more than five hours, during which time anyone could have

accessed it.    Although the Commonwealth points out that Appellee’s

prescriptions, found in the backpack, were “filled within one or two days” of

the call reporting the backpack, we agree with the trial court that this is

insufficient to connect Appellee firmly with either the backpack itself or its

illicit contents. See Commonwealth’s Brief at 2.




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      The authority that the Commonwealth cites is distinguishable on the

facts presented therein. See Commonwealth v. McCree, 924 A.2d 621 (Pa.

2007) (car stop; plain view exception requires a determination of whether

police have a lawful right of access to the object seen in plain view);

Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005) (hit and

run DUI, hot pursuit; where officer has probable cause and evidence of BAC

will fade, exigent circumstances justified entry for warrantless arrest). The

cases cited by the Commonwealth fail to support its stance that the contents

of an abandoned bag, on their own, can establish constructive possession in

this scenario. If the arrest warrant was lawful, then certainly McCree might

support application of the plain-view exception, but the Commonwealth has

cited no law establishing the lawfulness of the warrant.

      Crucially, our test for probable cause requires not only facts sufficient

to warrant a person of reasonable caution to believe a crime has been

committed, but that the facts warrant belief that the suspect in question

committed the crime. In re C.C.J., 799 A.2d at 121. Here, the police knew

at the outset that the backpack had been abandoned for at least five hours.

Any connection between Appellee and the illicit contents of the backpack was

too attenuated to provide sufficient support for the arrest warrant. Because

the contents of the abandoned backpack and the facts surrounding its

apprehension do not provide probable cause for the arrest warrant, it is not

possible that they could, without more, support a prima facie case for


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possession of the illicit substances with which Appellee was charged.3 Thus,

the trial court properly terminated both prosecutions.

       Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2020




____________________________________________


3 The Commonwealth emphasizes that courts must apply a lower standard
when determining probable cause than when determining whether the
Commonwealth has established a prima facie case. Commonwealth’s Brief at
7. Because we find that the Commonwealth has not met that lower standard,
we need not elaborate further.

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