J-S51029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

MICHAEL ANTHONY MITCHELL

                            Appellee                  No. 241 EDA 2015


                   Appeal from the Order December 18, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001841-2014


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 18, 2015

        The Commonwealth appeals the order entered in the Court of Common

Pleas of Philadelphia County, granting Michael Anthony Mitchell’s pre-trial

motion to quash. After careful review, we reverse and remand for further

proceedings.

        The trial court summarized the facts and initial procedural history of

this case as follows:

        On January 31, 2014, Philadelphia Police Officers observed
        [Mitchell] engaging in what they believed to be narcotics
        transactions while outside of his home. As a result of these
        observations, the officers placed [Mitchell] under arrest,
        obtained a warrant, and searched the home in question. At the
        time the warrant was executed, [Mitchell]’s mother and brother
        were on the first floor of the home, and [Mitchell]’s brother was
        preparing breakfast. The officers recovered a gun from the first
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*
    Retired Senior Judge assigned to the Superior Court.
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      floor of the home, where it was in plain view. Officers also
      searched the second floor of the house, where they discovered
      narcotics in a common area. [Mitchell]’s bedroom is located on
      the second floor of the home, [Mitchell] had keys to the home,
      and other evidence that [Mitchell] does in fact reside in the
      home was found during the search.

      On January 31, 2014, [Mitchell] was arrested and charged with
      one (1) count [of] manufacture, delivery, or possession with
      intent to manufacture or deliver; one count [of] intentional
      possession [of a] controlled substance by person not registered;
      one count of possession of drug paraphernalia; one (1) count
      [of] possession [of an] instrument of crime; one (1) count
      possession of firearm prohibited; and one (1) count conspiracy –
      manufacture, delivery, or possession with intent to manufacture
      or deliver.

      On February 18, 2014, a preliminary hearing was held in the
      Philadelphia County Municipal Court, where the above charges
      were held for court. [Mitchell] filed a motion to quash the
      charges of possession of a firearm prohibited and possession of
      an instrument of a crime. This Court granted [Mitchell]’s motion
      at a hearing held on December 18, 2014.

      On January 16, 2015, the Commonwealth filed a notice of
      appeal, as well as a 1925(b) statement of errors complained of
      on appeal, questioning whether this court erred “in granting
      [Mitchell]’s motion to quash weapons charges where the
      evidence was sufficient to support a prima facie case, in that
      [Mitchell] had a key to the residence where the gun was kept by
      the front door, he sold drugs in front of the residence, drugs and
      drug paraphernalia were found inside the residence, and the
      residence contained work identification and a jury summons with
      [Mitchell]’s name at that address.”

Trial Court Opinion, 3/10/15, at 1-3 (internal citations omitted).

      The Commonwealth claims the trial court erred by granting Mitchell’s

motion to quash because the evidence presented at the preliminary hearing

established a prima facie case of possession of an instrument of crime




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(“PIC”),1 possession of a firearm by a prohibited person,2 conspiracy,3

knowing or intentional possession of a controlled substance,4 and possession

of drug paraphernalia.5 See Brief of Appellant, at 4.

        Our standard of review of a trial court’s order granting a criminal

defendant’s pre-trial motion to quash is as follows:

        The decision to grant a motion to quash a criminal information or
        indictment is within the sound discretion of the trial judge and
        will be reversed on appeal only where there has been a clear
        abuse of discretion.       Discretion is abused when the course
        pursued by the trial court represents not merely an error of
        judgment, but where the judgment is manifestly unreasonable or
        where the law is not applied or where the record shows that the
        action is a result of partiality, prejudice, bias, or ill will.

Commonwealth v. Lebron, 765 A.2d 293, 294-95 (Pa. Super. 2000)

(internal citations and quotations omitted).

        First, we must address whether the trial court erred in dismissing all of

the charges against Mitchell with the exception of possession of a controlled

substance with the intent to deliver (“PWID”). The motion to quash filed by

Mitchell requested the dismissal of only two charges: (1) possession of a

firearm prohibited and (2) possession of an instrument of crime (“PIC”). “A
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1
    18 Pa.C.S. § 907(a).
2
    18 Pa.C.S. § 6105.
3
    18 Pa.C.S. § 903.
4
    35 P.S. § 780-113(a)(16).
5
    35 P.S. § 780-113(a)(32).



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request to quash an information must ordinarily be made in an omnibus

pretrial motion for relief or it is considered waived.”   Pa.R.Crim.P. 578;

Commonwealth v. Rishel, 658 A.2d 352, 358 (Pa. Super. 1995).           Here,

Mitchell did not move to quash the charges of conspiracy, knowing or

intentional possession of a controlled substance, or possession of drug

paraphernalia, yet the court did so anyway.      Accordingly, the trial court

erred in sua sponte quashing the charges.         See Commonwealth v.

Waters, 418 A.2d 312, 318-19 (Pa. 1980) (finding trial court erred in

quashing attempted murder charge sua sponte). Therefore, these charges

must be reinstated.

     The Commonwealth next claims that the court erred in quashing the

possession of a firearm prohibited and PIC charges, as it established a prima

facie case at the preliminary hearing by showing that Mitchell had

constructive possession over the gun found in the home. We agree.

     The lower court held that the Commonwealth did not provide sufficient

evidence to establish a prima facie case because it did not prove that

Mitchell had actual or constructive possession of the gun.    “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.”

Commonwealth v. Weigle, 997 A.2d 306, 311 (Pa. 2010), citing

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




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      Here, because the gun was not found on Mitchell’s person, the

Commonwealth was required to prove that Mitchell had constructive

possession over the gun. Commonwealth v. Macolino, 469 A.2d 132, 134

(Pa. 1983).   To prove constructive possession, the Commonwealth must

show that the accused “exercise[d] a conscious dominion over the illegal

[contraband.]” Commonwealth v. Valette, 613 A.2d 548, 550 (Pa. 1992).

Conscious dominion is the “power to control the contraband and the intent to

exercise that control.”   Id., citing Commonwealth v. Mudrick, 507 A.2d

1212, 1213 (Pa. 1986).

      The trial court found that the Commonwealth did not present a prima

facie case because “mere presence at the scene where a gun is found is not

sufficient to show such possession.”     Trial Court Opinion, 3/10/15, at 4,

citing Commonwealth v. Boatwright, 453 A.2d 1058, 1059 (Pa. Super.

1982).   However, in Boatwright, the appellant was sitting in the front

passenger seat of a car with another individual in the driver’s seat when an

officer saw him move toward the left rear of the car, where a gun was later

recovered from the floor of the vehicle. Id. at 1058. The Court found that

Boatwright did not have constructive possession over the gun because the

Commonwealth did not provide sufficient evidence to prove that he had the

power or intent to possess the firearm. Id. at 1059.

      The trial court also concluded that, because the gun was found in a

shared, common area of the house, where several individuals could access

it, “it is impossible to infer that [Mitchell] meant to control the gun, or even

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that he necessarily had the ability to do so.” Trial Court Opinion, 3/10/15,

at 5. However, the Commonwealth may demonstrate that Mitchell had joint

constructive possession of the firearm, which means that more than one

person can have control and access to the contraband. Commonwealth v.

Davis, 480 A.2d 1035, 1045 (Pa. Super. 1984).               Joint constructive

possession can be inferred from the totality of the circumstances. Id. For

example, in Commonwealth v. Macolino, 469 A.2d 132, (Pa. 1983), the

court found that “it was reasonable for the fact-finder to conclude that the

appellee maintained a conscious dominion over the cocaine found in the

bedroom closet which he shared solely with his wife.” Id. at 136. The Court

also noted that the law prohibiting possession of contraband would not make

sense if a person could store the contraband in a shared space to avoid

prosecution. Id.

      Here, the firearm was found in a shared space, in plain view, and was

accessible to three adults living in the house.      Given the totality of the

circumstances, it is reasonable to infer that Mitchell, a resident of the house,

had at least joint constructive possession of the firearm. Mudrick, 507 A.2d

at 1214 (holding that equal access to cocaine found in plain view could be

found by jury to be constructive possession); see Commonwealth v.

Patterson, 591 A.2d 1075, 1078 (Pa. Super. 1991) (taking judicial notice

that drug dealers in Philadelphia are often armed).       The police observed

Mitchell dealing drugs outside his home, and saw him enter and exit the

property multiple times. The firearm was found on a table directly inside the

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doorway to the house. Accordingly, we find that it is reasonable to infer that

Mitchell had at least joint constructive possession of the firearm, and that

the Commonwealth presented a prima facie case to establish the possession

of firearms prohibited and PIC charges. Accordingly, the trial court erred in

granting Mitchell’s motion to quash.

      Order reversed.     Case remanded for proceedings consistent with the

dictates of this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2015




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