J-A11001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

KEITH HARRIS,

                            Appellee                  No. 2525 EDA 2014


                  Appeal from the Order Entered July 30, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0048044-2013


BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 13, 2016

       The Commonwealth appeals from the order denying its motion to refile

criminal charges against Appellee, Keith Harris, in the above-captioned

matter after the court of common pleas determined the Commonwealth

failed to present a prima facie case to permit a trial. Upon careful review,

we reverse.

       We summarize the procedural history of this case as follows. In the

early evening of December 19, 2013, Philadelphia Police were conducting

surveillance in the 2900 block of Kip Street when they observed Appellee’s

involvement with Ricardo Correa to the extent that they believed Appellee

was participating in the sale of narcotics with Mr. Correa. On December 20,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A11001-16


2013, Appellee was charged with possession of a controlled substance,

possession of a controlled substance with intent to deliver, and conspiracy.

       At a preliminary hearing held before the Honorable Nazario Jimenez of

the Municipal Court of Philadelphia County on April 16, 2014, the charges

brought against Appellee were dismissed due to lack of evidence.1             On

May 16, 2014, the Commonwealth filed a notice of refiling of the criminal

complaint against Appellee.         On July 30, 2014, a preliminary hearing was

conducted before the Honorable Harold M. Kane of the Court of Common

Pleas of Philadelphia County. At the close of the hearing, Judge Kane denied

the Commonwealth’s motion to refile the charges against Appellee.            The

Commonwealth then filed a motion for reconsideration on August 1, 2014,

which was never addressed.                Thereafter, on August 28, 2014, the

Commonwealth filed this timely appeal.2

       The Commonwealth presents the following issue for our consideration:


____________________________________________


1
   It is well settled that “[a] magistrate’s decision to dismiss criminal charges
after a preliminary hearing is unappealable.” Commonwealth v. Carbo,
822 A.2d 60, 64 (Pa. Super. 2003) (citation omitted). “Therefore, the
reinstitution of charges is the only recourse available to the Commonwealth
after it fails to establish a prima facie case at a preliminary hearing.” Id. As
will be discussed infra, the Commonwealth refiled the charges against
Appellant, and the July 30, 2014 order from which it is now appealing
essentially dismissed those charges for a second time.
2
  Although not ordered to do so by the trial court, on August 28, 2014, the
Commonwealth filed a Pa.R.A.P. 1925(b) statement. The trial court has not
prepared an opinion pursuant to Pa.R.A.P. 1925(a).



                                           -2-
J-A11001-16


            Properly viewed in the light most favorable to the
     Commonwealth, did the evidence at the preliminary hearing
     establish a prima facie case of possession of narcotics with intent
     to deliver and conspiracy?

Commonwealth’s Brief at 4.

     The Commonwealth argues that the court of common pleas erred in

denying the Commonwealth’s motion to refile the charges against Appellee,

claiming that it established a prima facie case that Appellee conspired with

Mr. Correa to sell drugs.    The Commonwealth points to the evidence that

Appellee accepted a large sum of cash from Mr. Correa, repeatedly entered

an abandoned home that contained 140 vials of crack cocaine, as well as

thirty packets of heroin and $370.00, and that Appellee “stood watch” on a

street corner while Mr. Correa sold drugs to two individuals.              The

Commonwealth claims that the trial court’s failure to find that Appellee’s

actions amounted to the statutory definition of conspiracy was legal error.

We are constrained to agree.

     We begin by noting that “[t]he question of the evidentiary sufficiency

of the Commonwealth’s prima facie case is one of law,” and as such, our

review is plenary.   Commonwealth v. Huggins, 836 A.2d 862, 865 (Pa.

2003). In Huggins, our Supreme Court explained:

           At the pre-trial stage of a criminal prosecution, it is not
     necessary for the Commonwealth to prove the defendant’s guilt
     beyond a reasonable doubt, but rather, its burden is merely to
     put forth a prima facie case of the defendant’s guilt. A prima
     facie case exists when the Commonwealth produces evidence of
     each of the material elements of the crime charged and
     establishes sufficient probable cause to warrant the belief that

                                    -3-
J-A11001-16


     the accused committed the offense. 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 go to the jury.
     Moreover, “[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.”

Huggins, 836 A.2d at 866 (citations omitted).

     Here, the Commonwealth charged Appellee with the crimes of

possession of narcotics, possession with intent to deliver, and criminal

conspiracy.    Regarding the crime of possession with intent to deliver, we

have stated the following:

     To establish the offense of possession of a controlled substance
     with intent to deliver, the Commonwealth must prove beyond a
     reasonable doubt that the defendant possessed a controlled
     substance with the intent to deliver it. The intent to deliver can
     be inferred from an examination of the surrounding facts and
     circumstances. Factors to consider in determining whether the
     drugs were possessed with the intent to deliver include the
     particular method of packaging, the form of the drug, and the
     behavior of the defendant.

           The Commonwealth has the option to establish actual or
     constructive possession.

              Constructive possession requires proof of the ability
              to exercise conscious dominion over the substance,
              the power to control the contraband, and the intent
              to exercise such control. Constructive possession
              may be established by the totality of the
              circumstances.

Commonwealth v. Perez, 931 A.2d 703, 707-708 (Pa. Super. 2007)

(citations and quotation marks omitted).




                                      -4-
J-A11001-16


     Further, with regard to the crime of criminal conspiracy we have

stated:

           Circumstantial evidence may provide proof of the
           conspiracy.   The conduct of the parties and the
           circumstances surrounding such conduct may create
           a “web of evidence” linking the accused to the
           alleged conspiracy beyond a reasonable doubt.
           Additionally:

                 An agreement can be inferred from a
                 variety of circumstances including, but
                 not limited to, the relation between the
                 parties, knowledge of and participation in
                 the crime, and the circumstances and
                 conduct of the parties surrounding the
                 criminal episode.    These factors may
                 coalesce to establish a conspiratorial
                 agreement beyond a reasonable doubt
                 where one factor alone might fail.

     “While the Commonwealth is not required to prove a written or
     express agreement, a tacit agreement must be established by
     reasonable inferences arising from the facts and circumstances
     and not by mere suspicion or conjecture.” Circumstances like an
     association between alleged conspirators, knowledge of the
     commission of the crime, presence at the scene of the crime,
     and/or participation in the object of the conspiracy, are relevant
     when taken together in context, but individually each is
     insufficient to prove a conspiracy.

Perez, 931 A.2d at 708.    Thus, even if a defendant was not the principal

actor in a drug transaction, he would be guilty of the underlying crime based

upon actions taken by co-conspirators in furtherance of the commission of

the crime. See Commonwealth v. McCall, 911 A.2d 992, 997 (Pa. Super.

2006) (evidence sufficient to sustain possession with intent to deliver and

conspiracy convictions where the defendant stood watch during drug


                                    -5-
J-A11001-16


transactions and received proceeds even though the defendant never

handled drugs).

       The facts, as presented to the trial court at the July 30, 2014 hearing,

are as follows:

              The facts of this case are [Mr. Correa] is seen by police
       officers counting United States currency which [Mr. Correa] gives
       to [Appellee] at the beginning of this case.

            This is approximately 7:15 PM, police officers           are
       observing [Mr. Correa] and [Appellee] on the street.

             When [Mr. Correa] hands the money to [Appellee] he says
       there you go that’s $115.00 to [Appellee].

            [Appellee] takes the money. The two are standing outside
       of an abandoned property.[3]    They go into the abandoned
       property together, Your Honor, and then they come out
       approximately one to two minutes later.

            When they come out of the abandoned property together
       what happens is they go to the street corner and a buyer
       approaches.

             Two sales take place at that time, Your Honor. Both sales
       are done by [Mr. Correa]. One of those buyers [is] stopped and
       has on their person -- oh, one other factor that I need to
       mention is when they come out of this abandoned property they
       don’t have anything in their hands when they go in. When they
       come out [Mr. Correa] is handling a clear bag.

             [Mr. Correa] does the two sales from that clear bag.     So
       both of the sales are --

                                          * * *
____________________________________________


3
    At the hearing on April 16, 2014, the police officer described the
abandoned property as having no electricity, no windows, and being strewn
with trash. N.T., 4/16/14, at 5.



                                           -6-
J-A11001-16


             Actually, [Mr. Correa] is holding it in his mouth initially
       when he walks out the door, Your Honor. But [Mr. Correa is]
       holding the bag and they do two sales from the corner from this
       bag. Again, that’s [Mr. Correa].

             However, the second buyer is stopped, Your Honor, and
       drugs are recovered from that buyer. They are two black vials of
       cocaine with black caps on them.

             What happens next is [Appellee] is again seen counting
       money after the second sale. Immediately afterwards he is seen
       counting money standing next to [Mr. Correa].

             [Appellee] then goes into the abandoned property again
       for one additional minute, Your Honor. [Appellee] comes back
       out. After that, Your Honor, there is another sale. What
       happens next is police officers go in to stop [Mr. Correa] and
       [Appellee].

             Off of [Mr. Correa] they find eight matching vials of
       cocaine on his person with the black caps on them. They also
       find $100.00 United States currency.

             In the property, inside the abandoned property, twenty
       feet from the door there is a hole in the floor. There is one
       hundred and forty vials of cocaine, Your Honor, and thirty
       packets of heroin, too. They matched the cocaine that’s sold
       and they matched the other cocaine that is recovered.

             And they also find $370.00 United States currency in bags
       on the floor, Your Honor.[4] So those are the facts of this case.

N.T., 7/30/14, at 3-6.

       Upon review of the foregoing evidence, we are constrained to conclude

that the facts stated above, viewed in the light most favorable to the

Commonwealth, amounted to enough evidence to establish a prima facie
____________________________________________


4
  At the April 16, 2014 hearing, the police officer testified that he recovered
only $55.00 from Appellee’s person. N.T., 4/16/14, at 8.



                                           -7-
J-A11001-16


case   of possession, possession with intent to      deliver, and criminal

conspiracy.   Accordingly, we conclude the trial court erred when it denied

the Commonwealth’s motion to refile the charges that were dismissed by the

municipal court. Hence, the trial court’s order is reversed and the case is

remanded for further proceedings consistent with this memorandum.

       Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2016




                                    -8-
