J-A24029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37



COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

MICHAEL GAY,

                            Appellee                    No. 97 EDA 2014


               Appeal from the Order Entered December 11, 2013
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: MC-51-CR-0001605-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

DISSENTING MEMORANDUM BY BENDER, P.J.E.:FILED DECEMBER 05, 2014

        I respectfully dissent.      I would conclude that the Commonwealth’s

evidence was insufficient to establish a prima facie case that Appellee

constructively possessed the cocaine found in the vehicle’s glove box.

        “Constructive possession has been defined as ‘conscious dominion,’

which requires two elements: the power to control the contraband and the

intent to exert such control.” Commonwealth v. Battle, 883 A.2d 641,

645 (Pa. Super. 2005) (citations omitted).        “To prove intent to control it

must be shown that the defendant had knowledge of the presence of the


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*
    Retired Senior Judge assigned to the Superior Court.
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contraband.”       Commonwealth v. Stephens, 331 A.2d 719, 723 (Pa.

Super. 1974) (citations omitted; emphasis added).

       Here, viewing the evidence in the light most favorable to the

Commonwealth, and considering all reasonable inferences based on that

evidence, I would conclude that the Commonwealth failed to proffer

sufficient evidence that Appellee knew the cocaine was in the glove box.

Most notably, Appellee invited the officers to open the glove box, from which

the trial court reasonably inferred that Appellee was unaware of the

contraband inside.1 This inference is bolstered by the fact that there was no

proof that Appellee owned the car,2 and he was not observed making any

movements in the area of the glove box prior to, or during, the stop of the

vehicle.




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1
  While the Commonwealth avers that Appellee’s telling the officers to
retrieve paperwork from the glove box demonstrates his knowledge of the
contents thereof, it is common practice to store a vehicle’s documentation in
the glove compartment. Therefore, Appellee’s knowledge that the vehicle’s
documentation would be inside the glove box did not alone prove that he
knew the glove box also contained cocaine.
2
  The Commonwealth repeatedly states that Appellee “told the police that he
owned the car….” Commonwealth’s Brief at 12, 14, 16. This misconstrues
the record. Officer Yanak testified that Appellee stated that the vehicle was
“legit and all the paperwork was good.” N.T., 12/11/13, at 11. Such
testimony does not amount to a concession by Appellee that he owned the
vehicle. Moreover, the Commonwealth did not present any other evidence
establishing that Appellee owned the car.




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     Accordingly, I would agree with the trial court that the evidence

presented by the Commonwealth at the preliminary hearing was insufficient

to prove a prima facie case that Appellee constructively possessed the

cocaine discovered in the glove box of the vehicle. Thus, I would affirm the

court’s order precluding the Commonwealth from proceeding to trial on the

charges of possession of a controlled substance and PWID.




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