J-A09023-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                     Appellant             :
                                           :
             v.                            :
                                           :
NAJEE EURE,                                :
                                           :
                     Appellee              : No. 2540 EDA 2014

                        Appeal from the Order July 31, 2014,
                    Court of Common Pleas, Philadelphia County,
                  Criminal Division at No. CP-51-CR-0002958-2014

BEFORE: BOWES, DONOHUE and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                           FILED APRIL 21, 2015

       Appellant, the Commonwealth of Pennsylvania (“the Commonwealth”),

appeals from the order entered on July 31, 2014, denying its motion for

reconsideration of the trial court’s order quashing the charge against

Appellee, Najee Eure (“Eure”), of persons not to possess, use, manufacture,

control, sell or transfer firearms.1 After careful review, we reverse the trial

court’s order and remand for trial.

       The facts and procedural history of this case are as follows. On the

evening of February 11, 2014, Officer Matthew York (“Officer York”), along

with two state parole agents and two police officers, visited Eure’s home,

located at 2603 Reed Street in Philadelphia, Pennsylvania. Officer York was

accompanying the parole agents on a parole compliance check for Eure, who



1
    18 Pa.C.S.A. § 6105(a)(1).
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was part of the Focused Deterrence Program as a convicted felon. During

the visit, Officer York recovered a black and silver Ruger .45 caliber handgun

from between the mattress and box spring of the bed in the middle upstairs

bedroom of Eure’s home.

      On February 21, 2014, police arrested Eure, charging him with persons

not to possess, use, manufacture, control, sell or transfer firearms.    At a

preliminary hearing on March 13, 2014, the Commonwealth presented the

testimony of Officer York. At the conclusion of the preliminary hearing, the

trial ordered Eure’s case held for court.   On June 10, 2014, Eure filed a

motion to quash the charge against him, averring that the Commonwealth

failed to present sufficient evidence at the preliminary hearing to sustain a

prima facie case against Eure for the above-referenced charge.      Motion to

Quash, 6/10/14, ¶ 7.    Specifically, Eure asserted that the Commonwealth

failed to produce “any actual or direct evidence that [Eure] is the person

who possessed the firearm found in the middle bedroom of the house.”

Memorandum in Support of Motion to Quash, 6/10/14, ¶ 2.          Eure asserts

that “[t]he Commonwealth believes that it has established a prima facie case

through the circumstantial evidence that [because Eure] lives at that house,

he and he alone must have possessed that gun.”          Id.   Therefore, Eure

contends, “[t]he Commonwealth is relying on a tenuous inference based on

circumstantial evidence[,]” and “[t]hat inference is not enough sustain the

Commonwealth’s burden at the preliminary hearing.” Id.



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      On June 12, 2014, the trial court granted Eure’s motion to quash at

the conclusion of a hearing on the motion.              On June 20, 2014, the

Commonwealth filed a motion for reconsideration of the trial court’s order

granting Eure’s motion to quash. On July 14, 2014, the trial court vacated

its June 12, 2014 order granting Eure’s motion to quash, pending its

determination of the Commonwealth’s motion for reconsideration. On July

31,   2014,    the   trial   court   denied   the   Commonwealth’s        motion   for

reconsideration. On September 2, 2014, the Commonwealth filed a timely

notice of appeal and concise statement of the errors complained of on appeal

pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure.

      On appeal, the Commonwealth raises one issue for our review and

determination: did the evidence at the preliminary hearing, viewed in the

light most favorable to the Commonwealth, establish a prima facie case

against Eure for the charge of persons not to possess, use, manufacture,

control, sell or transfer firearms? Commonwealth’s Brief at 1.

      We begin by acknowledging our standard of review:

              [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.                 See
              [Commonwealth v. Huggins, 836 A.2d 862, 865
              (Pa. 2003)]. Indeed, the trial court is afforded no
              discretion in ascertaining whether, as a matter of law
              and in light of the facts presented to it, the
              Commonwealth has carried its pre-trial, prima facie
              burden to make out the elements of a charged
              crime.



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Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005).

      Furthermore, our Supreme Court has stated the following with regard

to establishing a prima facie case:

            At the preliminary hearing stage of a criminal
            prosecution, the Commonwealth need not prove the
            defendant’s guilt beyond a reasonable doubt, but
            rather, must merely put forth sufficient evidence to
            establish a prima facie case of guilt. Huggins, 836
            A.2d at 866 (citing Commonwealth v. McBride, []
            595 A.2d 589, 591 ([Pa.] 1991)). A prima facie case
            exists when the Commonwealth produces evidence
            of each of the material elements of the crime
            charged and establishes probable cause to warrant
            the belief that the accused committed the offense.
            McBride, 595 A.2d at 591 (citing Commonwealth
            v. Wojdak, [] 466 A.2d 991 ([Pa.] 1983)).
            Furthermore, 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 be
            decided by the jury. Huggins, 836 A.2d at 866.

Id. at 513-14. “When deciding whether a prima facie case was established,

we   must   view   the   evidence     in   the   light   most    favorable   to   the

Commonwealth, and we are to consider all reasonable inferences based on

that evidence which could support a guilty verdict.”            Commonwealth v.

McCullough, 86 A.3d 896, 898-99 (Pa. Super. 2014) (citation omitted).

“The weight and credibility of the evidence is not a factor at this stage.” Id.

at 899 (quotations and citation omitted).

      Section 6105(a)(1) defines the crime of persons not to possess, use,

manufacture, control, sell or transfer firearms as follows:




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            (a) Offense defined.—

                  (1) A person who has been convicted of an
                  offense enumerated in subsection (b), within
                  or without this Commonwealth, regardless of
                  the length of sentence or whose conduct meets
                  the criteria in subsection (c) shall not possess,
                  use, control, sell, transfer or manufacture or
                  obtain a license to possess, use, control, sell,
                  transfer or manufacture a firearm in this
                  Commonwealth.

18 Pa.C.S.A. § 6105(a)(1).     Importantly, the Commonwealth may prove

illegal possession of a firearm by constructive possession. Commonwealth

v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011).

            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.

Id. (quotations and citations omitted).

      The trial court explained its reasoning for dismissing the charge

against Eure as follows:

            [The Commonwealth] here failed to establish any
            real evidence that the bedroom where the gun was
            found was under the exclusive possession and
            control of [Eure], or … that he ever exercised
            dominion over it, and thus failed to establish the
            existence of any evidence that would demonstrate



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            that he ever knowingly had the power or the
            intention at a given time to exercise dominion and
            control over the weapon that was found there, either
            directly or through others.

Trial Court Opinion, 10/15/14, at 9.

      We disagree. Viewing the evidence in the light most favorable to the

Commonwealth and considering all reasonable inferences drawn therefrom,

we conclude that the Commonwealth established a prima facie case against

Eure for the charge of persons not to possess, use, manufacture, control,

sell or transfer firearms.    The certified record on appeal reveals the

following. Eure is a convicted felon and subject to section 6105(a)(1). 2 See

N.T., 3/13/14, at 23. While Eure was not present for the compliance check,

Officer York stated that he knew him well, that he knew him to live at 2603

Reed Street for his entire police career, and that 2603 Reed Street was the

address he was released to from state parole.        Id. at 6.   Officer York

reported that Eure’s mother, who was home at the time in question,

answered the door and told Officer York that Eure’s room was the back

upstairs bedroom, but that he stayed in the middle upstairs bedroom. Id. at

14-15.   Officer York testified that he observed clothing in both the middle

and back bedrooms, but that he observed a black North Face jacket in the

middle bedroom that he had seen Eure wearing approximately one month

prior. Id. at 7, 16. Officer York further stated that he also noticed that the


2
  Additionally, Eure has not contested the fact that he is subject to section
6105(a)(1).


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J-A09023-15


bed in the middle bedroom, although unmade, was dressed with sheets

while the bed in the back bedroom contained no sheets.              Id. at 21.

Specifically, Officer York testified:

             The back bedroom, in my opinion, was not lived in,
             Your Honor. There [were] no sheets on the bed.
             There was no indication to me that anyone had
             stayed in there recently. The middle bedroom[] was
             lived in. There [were] sheets on the bed. The
             blankets were strewed.        There was clothing
             throughout the bedroom on the floor, indicative that
             someone was living in there.

Id.   Finally, Officer York reported that he recovered the black and silver

Ruger .45 caliber handgun from between the mattress and box spring of the

bed in the middle bedroom. Id. at 5.

      Officer York’s testimony supports a reasonable inference that Eure was

in possession of the firearm recovered from the middle bedroom of his

home. Officer York’s testimony indicated that Eure’s mother indicated that

Eure used the middle bedroom and that upon entering it, it was apparent

that Eure slept in and kept his belongings in the middle bedroom.

Therefore, because the middle bedroom was the room from which Officer

York recovered the firearm, the reasonable inference that follows is that

Eure had the power to control the firearm and the intent to exercise that

control. See Cruz, 21 A.3d at 1253. Accordingly, because Eure is subject

to section 6105(a)(1), we conclude that the trial court erred in granting the




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motion to quash the charge against Eure of persons not to possess, use,

manufacture, control, sell or transfer firearms and remand the case for trial.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/21/2015




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