J-A06022-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                v.                             :
                                               :
    ALEX OROZCO                                :
                                               :
                       Appellee                :      No. 2024 EDA 2018

                  Appeal from the Order Entered June 20, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0009828-2017


BEFORE:      STABILE, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.:                                 FILED MARCH 30, 2020

        Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Philadelphia County Court of Common Pleas, which affirmed the

dismissal of charges brought against Appellee, Alex Orozco, and denied the

Commonwealth permission to refile the charges.1 We reverse and remand.

        The relevant facts and procedural history of this appeal are as follows.

Ericka Richards (“Complainant”) and Appellee have children and lived together

on the 7100 block of Castor Avenue in Philadelphia. On the evening of April

7, 2017, Complainant contacted her cousin. Complainant indicated that she

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 The Commonwealth timely filed a notice of appeal on July 12, 2018, pursuant
to Pa.R.A.P. 311(d) (allowing Commonwealth to appeal as of right in criminal
case from pretrial order, where Commonwealth certifies that order will
terminate or substantially handicap prosecution).
J-A06022-20


feared Appellee, who had threatened her family and bragged about shooting

someone a week earlier. Complainant’s concerns were compounded by the

fact that Appellee possessed a firearm, which he brandished in her presence

on prior occasions. Complainant even took photographs of the firearm, as

Appellee frequently kept it on the coffee table at their residence.

      On the morning of April 8, 2017, Complainant’s cousin made several

unsuccessful attempts to contact Complainant.       Fearing for Complainant’s

safety, Complainant’s cousin notified the police.       Police arrived at the

residence and knocked on the door, but Appellee did not allow them to enter.

Complainant asked Appellee to let her leave the residence, but Appellee would

not allow it. The police remained outside and surrounded the residence. After

approximately one hour, Appellee allowed Complainant and their baby to exit.

Several hours later, Appellee surrendered to police.

      Police obtained warrants to search the residence, as well as a 2016

Hyundai Sonata parked outside.      Complainant indicated that she had seen

Appellee driving the vehicle, which a friend had rented for him. The search of

the vehicle yielded a firearm inside the glove compartment. Police showed

the firearm to Complainant, who identified it as the same firearm she had seen

Appellee carrying.

      On April 9, 2017, the Commonwealth filed a criminal complaint charging

Appellee with five (5) violations of the Uniform Firearms Act (“VUFA”) and one




                                     -2-
J-A06022-20


(1) count each of terroristic threats and unlawful restraint.2 The Philadelphia

County Municipal Court conducted Appellee’s preliminary hearing on April 24,

2017. At the conclusion of the hearing, the court dismissed the VUFA and

terroristic threats charges. The court also remanded the matter for trial on

unlawful restraint.

       On May 10, 2017, the Commonwealth provided notice of the refiling of

the criminal complaint. The Court of Common Pleas conducted a hearing on

the matter on June 20, 2018. That same day, the court entered an order

denying the Commonwealth’s request to reinstate the charges.

       The Commonwealth timely filed a notice of appeal on July 12, 2018. On

August 8, 2018, the court ordered the Commonwealth to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.                   The

Commonwealth timely filed its Rule 1925(b) statement on August 27, 2018.

       The Commonwealth now raises one issue for our review:

            DID   THE   COMMONWEALTH     PRESENT    SUFFICIENT
            EVIDENCE TO MAKE OUT A PRIMA FACIE CASE THAT
            [APPELLEE] VIOLATED SECTIONS 6105, 6106, 6108, AND
            6110.2 OF THE UNIFORM FIREARMS ACT?

(Commonwealth’s Brief at 4).

       On    appeal,    the   Commonwealth       argues   Appellee   constructively

possessed the firearm recovered from the vehicle that he had been driving in



____________________________________________


2 18 Pa.C.S.A. §§ 6105, 6106, 6108, 6110.2, 6117, 2706, and 2902,
respectively.

                                           -3-
J-A06022-20


the weeks prior to his arrest. The Commonwealth emphasizes Complainant’s

testimony that: 1) Appellee’s friend had rented the vehicle for him; 2) Appellee

had been driving the vehicle for a week or two; and 3) she recognized the

firearm recovered from the vehicle. The Commonwealth insists the evidence

that Appellee drove the vehicle can establish constructive possession,

regardless of whether Appellee actually owned the vehicle.        In addition to

Appellee’s constructive possession, the Commonwealth maintains it presented

sufficient evidence to establish the remaining elements of the VUFA charges

at issue. The Commonwealth concludes it presented a prima facie case as to

each count of VUFA, and this Court must reverse the order denying the

Commonwealth’s request to reinstate the charges.3 We agree.

       “[I]t is settled that the evidentiary sufficiency, or lack thereof, of the

Commonwealth’s prima facie case for a charged crime is a question of law as

to which an appellate court’s review is plenary.”          Commonwealth v.

Karetny, 583 Pa. 514, 528, 880 A.2d 505, 513 (2005). “Indeed, the trial

court is afforded no discretion in ascertaining whether, as a matter of law and

in light of the facts presented to it, the Commonwealth has carried its pre-

trial, prima facie burden to make out the elements of a charged crime.” Id.




____________________________________________


3 Significantly, the Commonwealth concedes it presented insufficient evidence
to support the charges of terroristic threats and altering the serial number of
a firearm. See Commonwealth’s Brief at 9 n.1, 14 n.3. Therefore, the
Commonwealth does not challenge the dismissal of these charges. Id.

                                           -4-
J-A06022-20


      “The purpose of a preliminary hearing is to determine whether the

Commonwealth has made out a prima facie case for the offenses charged.”

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

         The preliminary hearing is not a trial. The principal function
         of a preliminary hearing is to protect an individual’s right
         against an unlawful arrest and detention. At this hearing
         the Commonwealth bears the burden of establishing at least
         a prima facie case that a crime has been committed and that
         the accused is probably the one who committed it.

         In addition, the evidence should be such that if presented
         at trial, and accepted as true, the judge would be warranted
         in allowing the case to go to the jury. The standard clearly
         does not require that the Commonwealth prove the
         accused’s guilt beyond a reasonable doubt at this stage.
         Most significant in this appeal, the weight and credibility of
         the evidence is not a factor at this stage.

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

citations and quotation marks omitted). “Inferences 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.” Ouch, supra at 923.

      Further, the Uniform Firearms Act provides, in relevant part, as follows:

         § 6105. Persons not to possess, use, manufacture,
              control, sell or transfer firearms

            (a)   Offense defined.—

                  (1) A person who has been convicted of an
            offense enumerated in subsection (b), within or without
            this Commonwealth, regardless of the length of sentence
            or whose conduct meets the criteria in subsection (c)
            shall not possess, use, control, sell, transfer or
            manufacture or obtain a license to possess, use, control,

                                     -5-
J-A06022-20


           sell, transfer or    manufacture    a   firearm    in   this
           Commonwealth.

                                *    *    *

          (b) Enumerated offenses—The following offenses
       shall apply to subsection (a):

                                *    *    *

                 Section 3701 (relating to robbery).

                                *    *    *

       § 6106. Firearms not to be carried without a license

           (a)   Offense defined.—

                (1) Except as provided in paragraph (2), any
           person who carries a firearm in any vehicle or any person
           who carries a firearm concealed on or about his person,
           except in his place of abode or fixed place of business,
           without a valid and lawfully issued license under this
           chapter commits a felony of the third degree.

                                *    *    *

       § 6108. Carrying firearms on public streets or public
            property in Philadelphia

          No person shall carry a firearm, rifle or shotgun at any
       time upon the public streets or upon any public property in
       a city of the first class unless:

           (1)   such person is licensed to carry a firearm; or

          (2) such person is exempt from licensing under section
       6106(b) of this title (relating to firearms not to be carried
       without a license).

                                *    *    *

       §   6110.2.  Possession of          firearm     with   altered
             manufacturer’s number

                                    -6-
J-A06022-20



            (a) General rule.—No person shall possess a firearm
         which has had the manufacturer’s number integral to the
         frame or receiver altered, changed, removed or obliterated.

18 Pa.C.S.A. §§ 6105(a)(1), (b), 6106(a)(1), 6108, and 6110.2(a).

      “When contraband is not found on the defendant’s person, the

Commonwealth must establish constructive possession….” Commonwealth

v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005). “Constructive possession is

the ability to exercise conscious control or dominion over the illegal substance

and the intent to exercise that control.” Id.

         It is well established that, as with any other element of a
         crime, constructive possession may be proven by
         circumstantial     evidence.      In   other   words,   the
         Commonwealth must establish facts from which the trier of
         fact can reasonably infer that the defendant exercised
         dominion and control over the contraband at issue.

Commonwealth v. Parrish, 191 A.3d 31, 36-37 (Pa.Super. 2018), appeal

denied, ___ Pa. ___, 202 A.3d 42 (2019) (internal citations and quotation

marks omitted).

      Instantly, Complainant’s testimony from the April 24, 2017 hearing

established that she feared Appellee because he frequently brandished a

firearm. Complainant testified, “He threatens me like silently. He doesn’t say

anything. He just pulls his gun out, and that’s it.” N.T. Hearing, 4/24/17, at

6. Complainant emphasized she is familiar with Appellee’s firearm, because

“[i]t stays on the coffee table every day. I have pictures of it.” Id. at 12.

Complainant also confirmed she saw Appellee’s firearm on April 8, 2017, which


                                     -7-
J-A06022-20


was the date when the police were called to her residence. See id. at 6-7,

12.

      At the June 20, 2018 hearing, Complainant testified the police recovered

Appellee’s firearm from “the car that he was driving.” N.T. Hearing, 6/20/18,

at 7. The police showed the firearm to Complainant, who confirmed it was

the same firearm she had photographed inside their residence. See id. at 8.

Regarding Appellee’s vehicle, Complainant indicated Appellee’s “friend had

rented him the car … and he used that car for a month.” Id. at 9. Complainant

also testified she had seen Appellee driving the vehicle at issue “for a week or

two.” Id. at 10.

      The Commonwealth also presented Detective Guarna, who explained he

obtained a warrant to search the vehicle parked in front of the residence. Id.

at 17-18. The detective recovered a firearm from the glove compartment,

and its serial number was scratched off. Id. at 18. Further, Appellee did not

have a license to carry the firearm, and he had a prior robbery conviction. Id.

at 18, 20.

      Despite this evidence, the trial court determined the Commonwealth

failed to establish Appellee’s constructive possession of the firearm:

         Here, there is no testimony, whatsoever, about any personal
         effects [in the vehicle] belonging to Appellee. Moreover,
         there was no paperwork, on the record, to support a finding
         that the vehicle was registered to or purchased by Appellee.
         In fact, the testifying officer noted that he did not recall the
         owner of the vehicle. There was no supporting testimony
         indicating if the car belonged to the alleged friend who let
         Appellee borrow the car, no testimony on any temporary

                                      -8-
J-A06022-20


         tags, and none regarding the vehicle being rented.
         Additionally, the … handgun in this case was recovered from
         the glove compartment. Other than the hearsay statement
         provided by the complainant, nothing on the record
         suggests that Appellee exercised conscious dominion over
         the vehicle and the handgun. Even if we find that Appellee
         drove the vehicle, as mentioned above, nothing in the
         record supports the conclusion that Appellee had control
         over the handgun.

(Trial Court Opinion, filed July 30, 2019, at 6).

      Nevertheless, Complainant’s testimony definitively established: 1) she

had seen Appellee in possession of a firearm on multiple occasions; 2) she

had seen Appellee driving the vehicle parked in front of their residence for

approximately two weeks; and 3) the firearm recovered from the vehicle was

the same one Complainant had seen Appellee brandish. Under the totality of

these circumstances, one could reasonably infer that Appellee exercised

dominion and control over the firearm.       See Parrish, supra.   See also

Commonwealth v. Kirkland, 831 A.2d 607 (Pa.Super. 2003), appeal

denied, 577 Pa. 712, 847 A.2d 1280 (2004) (holding sufficient evidence

established defendant’s constructive possession of contraband found in

vehicle; even though defendant did not own vehicle and arresting officers did

not see defendant in vehicle, defendant’s wife told officers defendant had

arrived in vehicle, defendant possessed keys to vehicle, and contraband was

located in area defendant could access).

      Our review of the testimony produced at the hearings, viewed in the

light most favorable to the Commonwealth and accepted as true at this


                                      -9-
J-A06022-20


juncture, leads us to conclude that the Commonwealth presented sufficient

evidence to establish a prima facie case as to the VUFA charges filed against

Appellee. See Ouch, supra; Hilliard, supra. Accordingly, we reverse the

order denying the Commonwealth’s request to refile the charges and remand

this case for further proceedings consistent with this opinion.

      Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2020




                                    - 10 -
