J-A08027-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                     Appellant            :
                                          :
                                          :
                v.                        :
                                          :
                                          :
 EARL MCCORMICK                           :   No. 2281 EDA 2018


                   Appeal from the Order Entered July 2, 2018,
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division at No(s): MC-51-CR-0038889-2017.

BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED JUNE 08, 2020

      The Commonwealth appeals the trial court’s order denying its motion to

refile charges against Earl McCormick based on the court’s determination that

there was insufficient evidence to establish firearm and drug violations. For

the reasons that follow, we reverse and remand.

      The trial court summarized the relevant factual and procedural history

as follows:

             On December 27, 2017, at approximately 9:35 p.m., Officer
      [Matthew] Lally [and his partner] observed [McCormick] driving a
      silver Chevy Impala with heavy tint on the side and back windows,
      traveling northbound on the 2900 block of Judson Street. The
      officer then saw [McCormick] turn into a parking spot without
      using his signals and [the officer] activated his lights.
      [McCormick] stepped out [of] the vehicle and the officers
      approached [him while he] was still at the driver’s side of the
      vehicle. Standing by the door, the officer testified that he saw a
      three and a half-inch, clear vial with a blue lid containing alleged
      marijuana on the door handle. The officer further testified that
      he “observed inside the car that the light switch that was directly
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      to the left of [the] steering wheel was removed from its casing.
      Behind the casing [was a black loaded firearm].” [When the
      officers located the firearm, McCormick stated “Did somebody call
      on me?”] The officer ran McCormick’s name for a valid permit to
      carry but it came back negative. The officer also ran the vehicle
      and determined the vehicle belonged to McCormick. As a result
      of the incident from that night, McCormick was charged with
      [violations of the Uniform Firearms Act (“VUFA”) under 18
      Pa.C.S.A.] §§ 6105, 6106 and 6108, and possession of marijuana
      under 35 Pa.C.S.A. § 780-113(a)(31).

Trial Court Opinion, 9/9/19, at 1-2.

      On February 22, 2018, the magisterial court conducted a preliminary

hearing.   The Commonwealth presented evidence that McCormick was the

owner, driver, and sole occupant of the vehicle from which the firearm and

marijuana were recovered.       McCormick stipulated that he had a prior

conviction that made him ineligible to possess a firearm. The magisterial court

held that the Commonwealth had not presented sufficient evidence to

establish a prima facie case, and dismissed the charges for lack of evidence.

      The Commonwealth thereafter filed a motion in the Court of Common

Pleas to refile the charges against McCormick. The trial court conducted a

hearing on the matter. The trial court incorporated the notes of testimony

from the preliminary hearing into the record, along with documents

establishing McCormick’s ownership of the vehicle, his criminal record, and his

non-licensure to own a firearm. On July 2, 2018, the trial court denied the

motion to refile charges. The Commonwealth filed a timely notice of appeal,

and both the Commonwealth and the trial court complied with Pa.R.A.P. 1925.




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      The Commonwealth raises the following question for our review: “Did

the lower court err in ruling that the evidence was insufficient to establish a

prima facie case that [McCormick] unlawfully possessed a firearm and

marijuana, where the evidence showed that [McCormick] was the owner,

driver and sole occupant of the car in which the firearm and marijuana was

found?” Commonwealth Brief at 4.

      Our Supreme Court has held that “it 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 (Pa. 2005)

(citation omitted).   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 pretrial prima facie burden to make out the

elements of a charged crime. Id.

      At the preliminary hearing stage of a criminal prosecution, the

Commonwealth’s burden is not to prove a defendant’s guilt beyond a

reasonable doubt; rather, it is merely to put forth a prima facie case of the

defendant’s guilt.”   Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa.

2003). A prima facie case exists where the Commonwealth produces evidence

to establish “each of the material elements of the crime charged and

establishes sufficient probable cause to warrant the belief that the accused

committed the offense.” Id. Furthermore, the evidence need only be such

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

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in permitting the case to be decided by the jury. Id. 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. 2000).

      Here, the Commonwealth charged McCormick with VUFA offenses under

18 Pa.C.S.A. §§ 6105, 6106 and 6108, and possession of marijuana under 35

Pa.C.S.A. § 780-113(a)(31). The elements of those offenses are as follows.

A person is guilty of possessing a firearm by a prohibited person if he

possesses a firearm after having been convicted of a crime rendering him

ineligible to do so. See 18 Pa.C.S.A. § 6105. A person is guilty of carrying a

firearm without a license if he carries a firearm in a vehicle without a valid and

lawfully issued license. See id. at § 6106(a)(1). A person is guilty of carrying

a firearm in public if he carries a firearm at any time on a public street without

a license to do so.    See id. at § 6108.     A person is guilty of possessing

marijuana if he possesses thirty grams or less of marijuana for personal use.

See 35 P.S. § 780-113(a)(31).

      At the hearing on the motion to refile the charges against McCormick,

the Commonwealth presented the notes of testimony from the preliminary

hearing, which were incorporated into the trial court record. N.T., 6/15/18,

at 3. Notably, the preliminary hearing transcript established that, on the date

in question, McCormick was the operator and sole occupant of a silver Chevy

Impala on a street in North Philadelphia. N.T., 2/22/18, at 6. The rear and

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side windows of the vehicle were heavily tinted. Id. at 8. Police observed

McCormick pull off the road into a parking spot without activating his turn

signal. Id. McCormick then got out of the vehicle. Id. at 7. The police

officers pulled over their police vehicle and approached McCormick as he was

positioned at the driver’s side door of the vehicle. Id. As they approached,

Officer Lally could immediately see a clear vial on the door handle which

appeared to contain marijuana. Id. at 7, 16. The officers field tested the

substance and confirmed that it was marijuana.         Id.   The officers then

conducted a search of the interior of the vehicle and observed that the light

switch panel to the left of the steering wheel had been removed from its

casing. Id. at 7, 19. Behind the casing was a loaded semiautomatic firearm.

Id. at 7. The officers ran a check for a valid permit to carry a firearm, and

discovered that McCormick did not have a firearm permit.         Id. at 8.   The

officers also determined that McCormick was the owner of the vehicle. Id.

     The Commonwealth also introduced (1) McCormick’s criminal record,

which reflected that he had a prior conviction which made him ineligible to

possess a firearm; (2) a certificate of non-licensure to carry firearm, which

showed that McCormick did not have a firearm permit; and (3) a PennDOT

record showing that McCormick was the owner of the vehicle in question. N.T.,

6/15/18, at 3.

     In its opinion, the trial court considered Officer Lally’s testimony that he

observed the glass vial of marijuana and firearm through the car’s heavily

tinted windows under the plain view exception to the warrant requirement.

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Trial Court Opinion, 9/9/19, at 4. In the trial court’s view, “[i]t is unrealistic

to think that anyone looking through heavily tinted windows, well after 9 p.m.,

in December, could see anything through that window.” Id. at 5. On this

basis, the trial court denied the Commonwealth’s motion to refile charges.

      Based on our review of the record, we conclude that the trial court erred

in denying the Commonwealth’s motion to refile the charges. Contrary to the

trial court’s finding, Officer Lally did not testify that he observed the vial of

marijuana through the vehicle’s heavily tinted windows. Instead, he simply

testified that he saw the vial as he approached McCormick, who was positioned

at the driver’s side door of the vehicle. N.T., 2/22/18, at 7. At the hearing

on the motion to refile charges, the Commonwealth clarified that the driver’s

side door remained open as the officers approached the vehicle.             N.T.,

6/15/18, at 7. The defense did not challenge this particular clarification.

      Importantly, the weight and credibility of the evidence is not a factor at

the preliminary hearing stage. See Commonwealth v. Landis, 48 A.3d 432,

444 (Pa. Super. 2012).      Thus, it was inappropriate for the trial court to

consider the credibility of Officer Lally’s testimony. Moreover, as noted above,

we read the preliminary hearing record in the light most favorable to the

Commonwealth.      See Nieves, 876 A.2d at 424 (holding that inferences

reasonably drawn from the evidence of record which would support a verdict

of guilty are to be given effect). Thus, while Officer Lally did not indicate at

the preliminary hearing whether the vehicle door was open or closed, it can

be reasonably drawn from his testimony that he was able to immediately view

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the vial on the door handle because the vehicle door was open. If the vehicle

door had been closed, then it would be questionable as to whether he would

have been able to immediately see the vial of marijuana on the interior door

handle. Therefore, we must grant the reasonable inference that the vehicle

door was open as Officer Lally and his partner approached McCormick, thereby

permitting them to view the interior of the driver’s side door and seating area.

      In view of this inference and the evidence presented, we conclude that

the Commonwealth established a prima facie showing of the elements of the

crimes it sought to refile against McCormick. The evidence established that

McCormick was the owner, driver, and sole occupant of the car in which the

marijuana and firearm were found. N.T., 2/22/18, at 6, 8. Both the marijuana

and the loaded firearm were found within McCormick’s arm’s reach such that

he constructively possessed them (i.e., the marijuana was in the handle of the

driver’s side door and the firearm was behind the light panel casing left of the

steering wheel). Id. at 7. McCormick’s intent to control the contraband was

corroborated by evidence of his consciousness of guilt when he responded by

asking the officers, “Did somebody call on me?” Id. at 20. McCormick was

driving on a public street in Philadelphia. Id. at 6. He did not have a license

to carry a firearm, and was ineligible to do so based on a prior conviction. Id.

at 6, 21–22. The substance in the vial was, in fact, marijuana. Id. at 7. As

this evidence is sufficient to establish the material elements of the crimes

charged, we agree with the Commonwealth that the trial court erred in

refusing to allow the charges to be refiled. We therefore reverse the July 2,

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2018 order, and remand for the entry of an order permitting the charges to

be refiled and bound for court.

      Order reversed.     Case remanded to allow charges to be refiled and

bound for court. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/20




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