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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JEREMIAH OSHEA IRVING                      :   No. 1629 WDA 2019

                Appeal from the Order Entered October 9, 2019
      In the Court of Common Pleas of Beaver County Criminal Division at
                        No(s): CP-04-CR-0000896-2019


BEFORE:      BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED APRIL 3, 2020

       The Commonwealth of Pennsylvania appeals from the Order entered in

the Court of Common Pleas of Beaver County on October 9, 2019, granting

Appellee Jeremiah Oshea Irving’s motion for habeas corpus relief for lack of

prima facie evidence with regard to charges of: receiving stolen property;

possession of firearm prohibited; conspiracy to commit receiving stolen

property; possession with intent to deliver a controlled substance; conspiracy

to commit possession with intent to deliver a controlled substance;

possession, and possession of drug paraphernalia.1 These charges stemmed



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* Former Justice specially assigned to the Superior Court.
1 The Commonwealth does not challenge herein the trial court’s decision as to
the receiving stolen property, possession of firearm prohibited and conspiracy
to commit receiving stolen property charges.
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from the execution of a search warrant on February 1, 2019. Following a

careful review, we reverse and remand for further proceedings.2

       Our review of the certified record reveals that following an investigation

of three individuals: Donald Williams, Robert Cook, and Appellee, Trooper

Joshua Fachet obtained and executed a search warrant for the area of 4600

4th Avenue, Apartments 3 and 4, in Beaver Falls, Pennsylvania.            At the

Preliminary Hearing held on April 30, 2019, Trooper Fachet testified that upon

entering Apartment 4 after executing that warrant on February 1, 2019, the

Pennsylvania State Police Special Emergency Response Team (SERT) located

several individuals therein. N.T. Preliminary Hearing, 4/30/19, at 8. When

he ultimately arrived, Trooper Fachet observed four men, including Appellee,

in the dining room and Williams, who was lying in the doorway between the

dining room and kitchen; SERT already had taken Cook from the scene. Id.

at 9, 12.

       A Vice Unit police officer on the scene notified Trooper Fachet that two,

clear, knotted baggies, one of which contained suspected crack cocaine and

the other of which contained two baggies of a white, powdery substance that

was believed to be cocaine, were found in the toilet. Id. at 10. Trooper Fachet




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2 The Commonwealth has perfected its interlocutory appeal from the Order
granting Appellee’s suppression motion in that its notice of appeal contains
the requisite statement certifying that the Order would “substantially handicap
the prosecution” pursuant to Pa.R.A.P. 311(d) and 904(e).


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estimated a total amount of two to three ounces of cocaine was contained in

the baggies. Id.

      On the kitchen countertop, Trooper Fachet observed a Pyrex cup and

baking soda along with a stainless steel knife stained with white residue. In

Trooper Fachet’s experience, such items are used to make crack cocaine. Id.

at 11. A scale with a small piece of a white chunky substance on it was found

near Cook and Appellee in the dining room. Id. Trooper Fachet found a stolen

handgun in the living room and recovered $1,700 from Appellee’s person and

$1,800 from Williams. Id. at 12.

      In the only bedroom of the home, Trooper Fachet observed a small,

knotted baggie containing suspected crack cocaine and a crack pipe in the top,

right dresser drawer. Id. at 13. Also therein were items bearing Cook’s name

and the address of the apartment. Id.

      Prior to the execution of the search warrant, police had conducted

surveillance on the residence. Id. at 23, 27. Trooper Fachet explained that

he “kn[e]w for sure that [Appellee] was observed coming and going

throughout the surveillance.” Id. In fact, police took photographs of Appellee

in front of the apartment building days before February 12, 2019.        N.T.,

10/1/19, at 10.

      Trooper Fachet filed a criminal complaint on February 1, 2019, charging

Appellee with the following seven counts:        Receiving Stolen Property;

Conspiracy to Commit Receiving Stolen Property; Possession of a Firearm;

Possession with Intent to Deliver; Conspiracy to Commit Possession with

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Intent to Deliver; Possession and Possession of Drug Paraphernalia. On June

10, 2019, the Commonwealth filed a criminal information charging Appellee

with the same seven counts. On July 19, 2019, Appellee filed a counselled

Omnibus Pre-Trial Motion for Relief wherein he requested a grant of habeas

corpus due to a lack of sufficient evidence.

       On October 1, 2019, the trial court held a Pre-Trial hearing at which

time Trooper Fachet provided additional testimony. Specifically, he explained

that surveillance at 4600, 4th Avenue, Apartment 4 identified Appellee

repeatedly entering and exiting the residence, and photographs of him doing

so were taken throughout January 22-23, 2019. N.T. 10/1/19, at 9-10. Also,

the search of the apartment revealed a court document and a shipping label

bearing Cook’s name and the Apartment 4 address, and while detained, Cook

admitted he resided in the apartment. Id. at 12-13. Trooper Fachet also

commented upon the approximately $1,700 and $1,800 found on Appellee

and Williams respectively. In doing so, he noted that based upon his training

and experience “individuals will allow dealers or drug traffickers to utilize their

apartment for many reasons, for payment or also through controlled

substances, various reasons, so it’s not unusual that the owner of the

residence is not holding a lot of money.” Id. at 38.

      In its October 9, 2019, Order the trial court granted, in part, Appellee’s

suppression motion. The Commonwealth filed a timely notice of appeal on

November 1, 2019. Although the trial court did not direct the Commonwealth



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to file a concise statement of the matters complained of on appeal pursuant

to Pa.R.A.P. 1925(b), the trial court filed a Rule 1925(a) Opinion on November

21, 2019. Therein, it indicated that it had determined it set forth the reasons

for the appealed Order in its Opinion and Order dated and entered on October

9, 2019; therefore, no further Opinion would be forthcoming.

      In its appellate brief, the Commonwealth presents the following question

for our review:

      1. Whether the trial court erred in ruling that the evidence was
         insufficient for a prima facie case as to possession with intent
         to deliver, conspiracy to commit[] possession with intent to
         deliver, possession and possession of drug paraphernalia.

Brief of Appellant at 7 (unnecessary capitalization omitted).

      The Commonwealth argues that the trial court erred in determining it

had failed to present prima facie evidence Appellee constructively possessed

any of the contraband found in Apartment 4. The Commonwealth stresses

Appellee may be deemed to have the requisite control over the contraband

even though other individuals were present in the apartment, especially in

light of the fact that he was found in close proximity to the manufacturing

materials. Id. at 20. The Commonwealth further contends the totality of the

evidence, including the large quantity of drugs found in the nearby toilet and

fact that Appellee had approximately $1,700 on his person, reveals that he

knew about and participated in the manufacturing of narcotics in the

apartment. Id. at 20, 22.

      At the outset, we recognize:

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     In reviewing a trial court’s order granting a defendant’s petition
     for writ of habeas corpus, we must generally consider whether the
     record supports the trial court’s findings, and whether the
     inferences and legal conclusions drawn from those findings are
     free from error. A trial court may grant a defendant’s petition for
     writ [of] habeas corpus after a preliminary hearing where the
     Commonwealth has failed to present a prima facie case against
     the defendant.

Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa.Super. 2017) (quotation

marks and citations omitted). Further:

     The evidentiary sufficiency of the Commonwealth’s case, or lack
     thereof, is a question of law; as such, our scope of review is
     plenary. Commonwealth v. Karetny, [ ] 880 A.2d 505, 528 (
     [Pa.] 2005). We have previously described the well-settled
     principles governing preliminary hearings, as well as the
     Commonwealth’s concomitant burden, as follows:
                The purpose of a preliminary hearing is to
          determine whether the Commonwealth has made out a
          prima facie case for the offenses charged. A prima facie
          case consists of evidence, read in the light most
          favorable to the Commonwealth, that sufficiently
          establishes both the commission of a crime and that the
          accused is probably the perpetrator of that crime.
                The Commonwealth establishes a prima facie case
          when it produces evidence that, if accepted as true,
          would warrant the trial judge to allow the case to go to
          a jury. The Commonwealth need not prove the elements
          of the crime beyond a reasonable doubt; rather, the
          prima facie standard requires evidence of the existence
          of each and every element of the crime charged.
          Moreover, the weight and credibility of the evidence are
          not factors at this stage, and the Commonwealth need
          only demonstrate sufficient probable cause to believe
          that the person charged has committed the offense.

     Commonwealth v. Ouch, 199 A.3d 918, 923 (Pa. Super. 2018)
     [ ].




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Commonwealth v. Perez, 220 A.3d 1069, 1075 (Pa.Super. 2019) (en banc)

(emphasis and footnote omitted), appeal granted on other grounds, March 2,

2020.

   Furthermore, “[t]o 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.”

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016)

(citation omitted). The Commonwealth may sustain its burden of proving

every element of the crime(s) by means of wholly circumstantial evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011). However,

“we have also noted that suspicion and conjecture are not evidence and are

unacceptable as such.” Commonwealth v. Holston, 211 A.3d 1264, 1269

(Pa.Super. 2019) (en banc) (citation omitted). “Where the Commonwealth’s

case relies solely upon a tenuous inference to establish a material element

of the charge, it has failed to meet its burden of showing that the crime

charged was committed.” Id. (citation omitted, emphasis in original). “To

meet its burden, the Commonwealth may utilize the evidence presented at

the preliminary hearing and also may submit additional proof.” Dantzler, 135

A.3d at 1112 (citation omitted).

        To establish possession and possession of drug paraphernalia the

Crimes Code requires, respectively:

              Knowing or intentionally possessing a controlled …
        substance by a person not registered under this Act, or a

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      practitioner not registered or licensed by the appropriate State
      board, unless the substance was obtained directly from, or
      pursuant to, a valid prescription order or order of a practitioner,
      or except as otherwise authorized by this Act.

35 P.S.§ 780-113(a)(16).

             The use of, or possession with intent to use, drug
      paraphernalia for the purpose of planting, propagating,
      cultivating, growing, harvesting, manufacturing, compounding,
      converting, producing, processing, preparing, testing, analyzing,
      packing, repacking, storing, containing, concealing, injecting,
      ingesting, inhaling, or otherwise introducing into the human body
      a controlled substance in violation of this Act.

35 P.S. § 780-113(a)(32).

      In addition, Possession with Intent to Deliver (PWID) is defined as

follows:

      Except as authorized by this act, the manufacture, delivery, or
      possession with intent to manufacture or deliver, a controlled
      substance by a person not registered under this act, or a
      practitioner not registered or licenses by the appropriate State
      board, or knowingly creating, delivering or possessing with intent
      to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30). This Court has explained the evidence necessary

to sustain a PWID conviction under 35 P.S. § 780-113(a)(30) as follows:

             The Commonwealth establishes the offense of [PWID] when
      it proves beyond a reasonable doubt that the defendant possessed
      a controlled substance with the intent to deliver it.
             To determine whether the Commonwealth presented
      sufficient evidence to sustain [a defendant’s] conviction for
      [PWID], all of the facts and circumstances surrounding the
      possession are relevant and the elements of the crime may be
      established by circumstantial evidence. Furthermore, possession
      with intent to deliver can be inferred from the quantity of the
      drugs possessed along with the other surrounding circumstances.




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Commonwealth v. Little, 879 A.2d 293, 297 (Pa.Super. 2005) (internal

citations omitted). Moreover,

     [w]ith regard to the intent to deliver, we must examine the facts
     and circumstances surrounding the possession. The intent to
     deliver may be inferred from possession of a large quantity of
     controlled substances. It follows that possession of a small
     amount of a controlled substance supports the conclusion that
     there is an absence of intent to deliver. If the quantity of the
     controlled substance is not dispositive as to the intent, the court
     may look to other factors.
            Other factors to consider when determining whether a
     defendant intended to deliver a controlled substance include the
     manner in which the controlled substance was packaged, the
     behavior of the defendant, the presence of drug paraphernalia,
     and the sums of cash found in possession of the defendant. The
     final factor to be considered is expert testimony. Expert opinion
     testimony is admissible concerning whether the facts surrounding
     the possession of controlled substances are consistent with an
     intent to deliver rather than with an intent to possess it for
     personal use.

Commonwealth v. Roberts, 133 A.3d 759, 768 (Pa.Super. 2016) (internal

citation omitted), appeal denied, 636 Pa. 675, 145 A.3d 725 (Pa. 2016).

     Possession may be proved “by showing actual possession, constructive

possession, or joint constructive possession.” Commonwealth v. Hall, 199

A.3d 954, 960 (Pa.Super. 2018), appeal denied, 206 A.3d 1028 (Pa. 2019).

     Constructive possession is the ability to exercise a conscious
     dominion over the contraband. It usually comes into play when
     police find contraband somewhere other than on the defendant's
     person. Constructive possession requires proof that the defendant
     had knowledge of the existence and location of the item. The
     Commonwealth may prove such knowledge circumstantially. That
     is, it may prove that the defendant had knowledge of the existence
     and location of the items at issue from examination of the totality
     of the circumstances surrounding the case, such as whether the
     contraband was located in an area usually accessible only to the
     defendant.

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              For the Commonwealth to prove constructive possession
        where more than one person has access to the contraband, the
        Commonwealth must introduce evidence demonstrating either the
        defendant’s participation in the drug-related activity or evidence
        connecting the defendant to the specific room or areas where the
        drugs were kept.

Id. at 961 (cleaned up).

        Finally:

               A person is guilty of conspiracy with another person to
        commit a crime if with the intent of promoting or facilitating its
        commission he (1) agrees with such other person or persons that
        they or one or more of them will engage in conduct which
        constitutes such crime or an attempt or solicitation to commit such
        crime; or (2) agrees to aid such other person or persons in the
        planning or commission of such crime or of an attempt or
        solicitation to commit such crime.

18 Pa.C.S.A. § 903(a).

        In its brief Opinion filed on October 9, 2019, the trial court provides

scant reasoning in support of its decision pertaining to the charges the

Commonwealth challenges herein. Instead, the court focuses primarily upon

the firearms charges. It does find that evidence Appellee actually made or

even was aware of an agreement to deliver controlled substances was lacking

because “[m]ere presence at the scene of a crime or knowledge of it is

insufficient   absent   [Appellee]   knowingly   entering   an   agreement    to

participate.” Trial Court Opinion, filed 10/9/19, at 3. In granting Appellee’s

petition for habeas corpus as to intentional possession of a controlled

substance, the court states that the search warrant was for an apartment of

which Appellee is not a lessee and “[n]othing was found on [Appellee].” Id.

at 5.

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     Contrary to the trial court’s holding, the Commonwealth is permitted to

establish Appellee’s constructive possession via circumstantial evidence and

the reasonable inferences that arise therefrom. Commonwealth v. Parrish,

191 A.3d 31, 36 (Pa.Super. 2018), appeal denied, 202 A.3d 42 (Pa. 2019).

Viewing the evidence presented at both hearings in a light most favorable to

the Commonwealth, we disagree with the trial court and find that, at a

minimum, the Commonwealth presented a prima facie case to establish

constructive possession as to possession with intent to deliver, possession,

and possession of drug paraphernalia.

     In the days prior to and on the day of the execution of the search

warrant at 4600, 4th Avenue, Apartment 4, Appellee was identified and

photographed entering and exiting the apartment building.      This behavior

indicates a familiarity with Apartment and suggests that Appellee’s presence

there on February 1, 2019, was not just happenstance.

     During the execution of the warrant, Appellee was in the dining room

with Cook and Williams, and a scale topped with suspected cocaine was found

on the dining room table.   In a nearby toilet, a bag containing two to three

ounces of cocaine was recovered. A search of the kitchen revealed a Pyrex

cup, a stainless steel knife stained with white residue and baking soda;

Trooper Fachet indicated such items were used to make crack cocaine.

Significantly, a search of Appellee recovered $1,700.00, while Williams was

found to possess over $1,800.00.




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      In light of this, it cannot be said definitively that Appellee was merely

present in the apartment with others and, therefore, lacked the requisite

control of these items. To the contrary, it may be inferred form Appellee’s

close proximity to the contraband and previously-observed behavior in and

around the apartment building that he constructively and jointly possessed

the same. This, coupled with the fact that he possessed a large sum of money,

is prima facie evidence he was aware of and a participant in the manufacturing

of narcotics in the apartment. See Parrish, supra.

      The same holds true with regard to the possession with intent to deliver

charge. As stated previously, a court may consider such factors as the way

in which drugs are packaged, a defendant’s behavior, the presence of drug

paraphernalia, the sum of cash found in his possession, and expert testimony

when determining whether he had an intent to deliver drugs, rather than

possess them for personal use.         See Roberts, supra. Trooper Fachet

commented upon the significant quantity of cocaine found in the toilet bowl,

the way in which it was packaged, and the paraphernalia located in the kitchen

as evincing an intent to sell the drugs. Each of these items was in close

proximity to Appellee in the apartment. Also, the large sum of cash found on

Appellee’s person and his activity around the apartment led Trooper Fachet to

comment that: “individuals will allow dealers or drug traffickers to utilize their

apartment for many reasons, for payment or also through controlled

substances, various reasons . . . .” N.T., 10/1/19, at 38.      In light of all the




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foregoing, we find the trial court erred in dismissing the possession,

possession of drug paraphernalia, and PWID charges.

     Finally, we further disagree with the trial court’s finding that the record

lacks prima facie evidence of a shared criminal intent among Appellee and his

codefendants to establish conspiracy to commit PWID. A criminal conspiracy

is proven upon the establishment of an agreement, shared criminal intent,

and an overt act in furtherance of the agreement. See Commonwealth v.

Johnson, 180 A.3d 474, 479 (Pa.Super. 2018) (citing, inter alia, 18 Pa.C.S.

§ 903). As this Court has explained,

     [a]n explicit or formal agreement to commit crimes can seldom, if
     ever, be proved and it need not be, for proof of a criminal
     partnership is almost invariably extracted from the circumstances
     that attend its activities. Thus, a conspiracy may be inferred where
     it is demonstrated that the relation, conduct, or circumstances of
     the parties, and the overt acts of the co-conspirators sufficiently
     prove the formation of a criminal confederation. The conduct of
     the parties and the circumstances surrounding their conduct may
     create a web of evidence linking the accused to the alleged
     conspiracy beyond a reasonable doubt. Even if the conspirator did
     not act as a principal in committing the underlying crime, he is
     still criminally liable for the actions of his co-conspirators taken in
     furtherance of the conspiracy.

Id. (cleaned up).

     From the previously discussed web of evidence, viewed in the light most

favorable to the Commonwealth, we find the Commonwealth established a

prima facie case that the interactions among Appellee, Cook and Williams

evince a shared criminal intent to package and sell cocaine over which the

three men exercised conscious dominion and control.


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      Prior to the execution of the search warrant, police observed Appellee

entering and exiting numerous areas of the apartment building as well as

Cook’s residence. When officers entered Apartment 4, Appellee, Cook and

Williams were found in the same room and in close proximity to the drugs and

other contraband. Appellee and Williams each had a large sum of cash on his

person, and Trooper Fachet explained that in his training and experience he

had learned that an individual often allows a drug dealer to utilize his or her

apartment to further the illegal enterprise. This circumstantial evidence

establishes, at a minimum, that the Commonwealth put forth a prima facie

case of conspiracy to commit possession with intent to deliver.           See

Commonwealth v. Jones, 874 A.2d 108, 122 (Pa.Super. 2005) (ruling

circumstantial evidence of relationship with other occupant of a vehicle and

joint access to contraband was sufficient to sustain conspiracy conviction).

      Accordingly, we reverse the Order granting Appellee habeas corpus

relief and remand for trial.

      Order Reversed. Case Remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/2020



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