J-S39019-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellant

                     v.

LADAYA DA SHAE MITCHELL

                                                  No. 1356 WDA 2016


                   Appeal from the Order August 11, 2016
              In the Court of Common Pleas of Cambria County
             Criminal Division at No(s): CP-11-CR-0000708-2016


BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED AUGUST 17, 2017

      The Commonwealth appeals from the August 11, 2016 order granting

Ladaya Da Shae Mitchell’s motion for writ of habeas corpus, and dismissing

without prejudice misdemeanor charges of possession of heroin and drug

paraphernalia. We affirm.

      Initially, Ms. Mitchell was charged with conspiracy and possession of

heroin with intent to distribute (“PWID”), both felonies, together with

possession of heroin and drug paraphernalia, misdemeanors, and summary

disorderly conduct. The facts giving rise to the charges were summarized by

the trial court as follows.

             On April 7, 2016, officer Ryan Chiodo (Chiodo) of the
      Johnstown Police Department was on patrol and issuing parking
      citations on Coleman Avenue in the Moxham area of Johnstown.
      Chiodo testified that Coleman Avenue is a dead [end] street and

* Retired Senior Judge assigned to the Superior Court.
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     that he observed a vehicle running with its headlights off and
     parking lights on parked on the side of the road where parking is
     not permitted. Chiodo observed two occupants and approached
     the vehicle from the passenger’s side due to a steep hill on the
     driver’s side. The passenger, Mitchell, rolled down the window
     and Chiodo engaged her and the driver, later identified as Abdul
     Kirk (Kirk) in conversation. Chiodo asked Mitchell if everything
     was okay, she indicated it was, that Kirk had given her a ride
     home from a nearby Sheetz convenience store, that they were
     now just talking, and that she lived just up the hill.

           Chiodo observed that Mitchell and Kirk appeared to be
     under 18 years old and asked for identification. Neither was able
     to provide ID but both gave Chiodo their names and dates of
     birth that he radioed in to dispatch to confirm. During the
     course of the conversation[,] Chiodo observed an open foil
     container of flavored cigars in the storage pocket on the
     passenger side front door near Mitchell. Chiodo asked Mitchell
     whom they belonged to and she said they weren’t hers and she
     did not know whose they were. Mitchell then reached for the
     package just as Chiodo was reaching for it and handed it to him.
     Chiodo looked into the package and observed two hand rolled
     cigarettes that he suspected to be marijuana joints.

           At this time[,] Kirk exited the vehicle and began walking
     around the front of it where Chiodo stopped him and conducted
     a pat down for officer safety. Finding nothing suspicious or
     dangerous, Chiodo again radioed dispatch seeking to confirm the
     information provided by Mitchell and Kirk as well as to identify
     the owner of the vehicle since Kirk was only able to say it
     belonged to a friend whose name he couldn’t remember. While
     waiting for further information Chiodo asked Mitchell to step out
     of the vehicle[,] which she did[,] and he conducted a pat down
     of her for his safety and found nothing suspicious. Following this
     the dispatcher radioed Chiodo confirming the information
     provided by Kirk and Mitchell and indicating that there were no
     active warrants on either but was unable to identify the vehicle
     owner due to computer issues.

           Officers Robertson and Plunkard arrived at the scene and
     while they monitored Kirk and Mitchell, Chiodo started to search
     the vehicle. On the driver’s side floor he found a candy box that
     he opened and in which he saw 100-150 stamp bags of

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      suspected heroin. At this time[,] Kirk fled the scene on foot and
      was pursued by officers Robertson and Plunkard who were
      unable to locate Kirk. Chiodo placed Mitchell in handcuffs and
      then in the back of his cruiser[,] eventually transporting her to
      the Johnstown Public Safety Building for processing.

Trial Court Opinion, 8/11/16, at 1-3.

      At the April 13, 2016 preliminary hearing, the district justice dismissed

counts one (PWID) and four (conspiracy), finding no evidence of an overt act

to support conspiracy of possession with intent to deliver. N.T. Preliminary

Hearing, 4/13/16, at 38. The district justice held over the remaining counts.

      On July 15, 2016, Ms. Mitchell filed a petition for writ of habeas corpus

in which she alleged that the evidence presented at the preliminary hearing

failed to satisfy the Commonwealth’s burden of a prima facie showing of

possession required for the crimes of controlled substance by a person not

registered,   35   P.S.   §   780-113(a)(16),   and   use/possession   of   drug

paraphernalia, 35 P.S. § 780-113(a)(32).        Her request for a hearing was

granted, and the hearing took place on August 8, 2016.

      The Commonwealth rested on the evidence adduced at the preliminary

hearing from Officer Chiodo. Ms. Mitchell testified on her own behalf. She

stated that she lived approximately ten feet from where she was arrested.

On the evening in question, she walked to Sheetz to buy cigarettes, but

doubled back because she had forgotten her identification card. She had no

cell phone with her and no driver’s license because she could not drive. It

was raining. She recognized the co-defendant, Abdul Kirk, as he drove by

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and she entered his car.          They were talking outside of her house when

Officer Chiodo pulled up.        Ms. Mitchell testified that she was unaware of

drugs in the car, that she did not have any drugs, and that she was not

buying any drugs.        With regard to the disorderly conduct count, counsel

argued that there was no evidence that Ms. Mitchell created a hazardous or

physically offensive condition as required for disorderly conduct under 18

Pa.C.S. § 5503(a)(4).

       The trial court agreed with Ms. Mitchell that the evidence of possession

fell short of that required to establish a prima facie case. In addition, the

court found that the evidence did not establish that Ms. Mitchell created a

condition that involved a hazard or danger in the sense of a public disorder

for purposes of the disorderly conduct charge.         The court dismissed the

charges.

       The Commonwealth timely appealed the dismissal of the possession

charges and it presents one issue for our consideration: “Whether the trial

court erred when it found that the Commonwealth failed to make out a

prima facie case for possession of heroin and possession of marijuana

paraphernalia when each item was within easy access of the Defendant in an

automobile.” Commonwealth’s brief at 4.1

____________________________________________


1
   Although Appellee sought and was granted several extensions of time to
file a brief, she has not done so.



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        We review a pretrial petition for writ of habeas corpus by examining

the evidence and reasonable inferences derived therefrom in a light most

favorable to the Commonwealth.            Commonwealth v. Dantzler, 135 A.3d

1109, 1111-1112 (Pa.Super. 2016) (quoting Commonwealth v. James,

863     A.2d    1179,   1182   (Pa.Super.       2004)    (en      banc).     Whether   the

Commonwealth has made out a prima facie case is a question of law, and

thus,    we    are   not    bound   by    the   trial   court’s    legal    determinations.

Commonwealth v. Karetny, 880 A.2d 505 (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, supra at 1112. In meeting that burden, the

Commonwealth may use the evidence adduced at the preliminary hearing

and submit additional proof. Id.

        The issue herein is whether the Commonwealth presented prima facie

evidence that Ms. Mitchell possessed the heroin and paraphernalia.                     The

Commonwealth could meet its burden by showing “actual, constructive, or

joint constructive possession of the contraband.”                    Commonwealth v.

Vargas,        108   A.3d   858,    868    (Pa.Super.      2014)     (en     banc).    The

Commonwealth concedes that the items were not found on Ms. Mitchell’s

person and, that in order to proceed, it was required to prove constructive

possession.      Constructive possession required proof that Ms. Mitchell had

both the power to control the contraband and the intent to exercise that

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control. Id. (citing Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa.

1983).).

     The Commonwealth maintains that Ms. Mitchell and the driver could

have been in joint constructive possession.      It challenges the trial court’s

finding that there was no evidence that Ms. Mitchell knew of the existence of

the marijuana wrappers when, four months later, she could articulate the

color and brand name of the wrappers. It argues further that co-defendant

Kirk had no access to the passenger door where the wrappers were located.

See Commonwealth v. Stembridge, 579 A.2d 901 (Pa.Super. 1990)

(constructive possession where appellant had easier access to drugs than

the driver and exhibited suspicious behavior).

     The trial court noted that Officer Chiodo offered no testimony that Ms.

Mitchell made any furtive movement, or any movement at all, toward the

door as he approached. Absent was the type of suspicious behavior present

in Stembridge that would signal knowledge of the presence of the drug

paraphernalia. Nor did the totality of the circumstances permit a reasonable

inference that Ms. Mitchell knew of the wrappers. See Commonwealth v.

Juliano, 490 A.2d 891, 892 (Pa.Super. 1985) (appellant’s knowledge of a

green satchel at his feet did not permit a reasonable inference that he knew

it contained contraband where he made no furtive movements and did not

attempt to flee).   After the officer observed “an opened foil pack of some

type of flavored cigars, which are commonly used to roll marijuana

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cigarettes or joints[,]” in the compartment at the bottom of the passenger

side door, he asked Ms. Mitchell whether they belonged to her.          N.T.

Preliminary Hearing, 4/13/16, at 9-10. Ms. Mitchell told him they were not

hers, and “[w]e both had reached for them at the same time.         And she

handed them to me.”     Id. at 10.   Viewing the evidence in the light most

favorable to the Commonwealth, we agree with the trial court that the

Commonwealth failed to adduce prima facie evidence from which it could be

inferred that Ms. Mitchell knew the wrappers were there or that she intended

to exercise control over the paraphernalia.

      We reach a similar conclusion with regard to constructive possession of

the drugs. A subsequent search of the vehicle at the scene yielded a candy

box located on the driver’s side floor. The box contained packets of heroin.

Although the heroin was concealed in a container in an area occupied by co-

defendant, the Commonwealth asked the trial court, and subsequently this

Court, to infer that the box had been placed there “in a furtive way” as the

police approached because its location would have interfered with the

operation of the brake and gas pedal.

      Again, the trial court found that Ms. Mitchell’s mere proximity to the

box was not enough, especially where it was located at the driver’s feet and

the heroin was not in plain view.       Even if there was evidence that Ms.

Mitchell saw the candy box, no reasonable inference could be drawn that she

knew there was heroin concealed therein. The court analogized the facts to

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those in Commonwealth v. Spencer, 621 A.2d 153 (Pa.Super. 1993),

where a passenger in a car was charged with possession of cocaine found in

the armrest of the driver’s side door.        This Court found no constructive

possession as there was no evidence that the passenger knew the drugs

were within the car or exercised conscious dominion over them.

      The     trial   court   contrasted   this   situation   with   the   one   in

Commonwealth v. Cruz-Ortega, 539 A.2d 849 (Pa.Super. 1988), where

cocaine was found under the defendant’s seat and he was observed leaning

over in his seat when police stopped the vehicle. See also Commonwealth

v. Austin, 631 A.2d 625 (Pa.Super. 1993) (bag containing cocaine at

defendant’s feet, he was observed touching it, and he lied about its contents

to police).

      Having examined the evidence and drawn the reasonable inferences

derived therefrom in a light most favorable to the Commonwealth, we agree

with the trial court that the Commonwealth failed to introduce prima facie

evidence of possession.       Absent was evidence from which any reasonable

inference could be drawn that Ms. Mitchell constructively possessed either

the paraphernalia or the heroin.

      Order affirmed.

      P.J.E. Bender joins the memorandum.

      Judge Strassburger files a concurring/dissenting memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2017




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