J-S55009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 3860 EDA 2017
    SABRINA ALLEN

               Appeal from the Orders Entered October 24, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0004769-2017


BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                            FILED DECEMBER 07, 2018

       Appellant, the Commonwealth of Pennsylvania, appeals from the orders

entered on October 24, 2017.1 Upon careful review, we reverse the orders

and remand for additional proceedings.

       The trial court recited the facts of this case as follows:2


____________________________________________


1  The Commonwealth appeals from two orders entered on October 24, 2017.
The first order granted Sabrina Allen’s motion for suppression of evidence
wherein she challenged the affidavit of probable cause supporting a search
warrant that the police executed at the apartment where she admitted she
lived. The second order granted Sabrina Allen’s motion for writ of habeas
corpus, quashing counts 1 through 4 of the criminal information filed against
her.

2   The trial court adduced the facts from the affidavit of probable cause
supporting the search warrant at issue, as well as the testimony from the
suppression hearing.
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       On January 22, 2017[,] at about 9:43 p.m.[,] Officer [Joshua]
       Alexander arrived at [an apartment building in Delaware County,
       Pennsylvania] to investigate a reported fight with a gun in the
       parking lot. On his arrival[,] he saw a white pick-up truck leaving
       the lot. He stopped the truck and made contact with the driver
       (Anthony Allen) and the [d]efendant (Sabrina Allen). He learned
       from one of [] these subjects that earlier in the evening Sabrina
       Allen had an argument with her boyfriend[,] Thurmond Allen[,] in
       Apartment 319 and that she called Anthony Allen.[3] Anthony
       went to the apartment and a physical altercation between him and
       Thurmond Allen took place. Officer Alexander observed fresh cuts
       on Anthony Allen’s hands. Officer Alexander asked [Sabrina Allen]
       for a description of Thurmond Allen and for the apartment
       number.

       When speaking with Anthony Allen[,] Officer Alexander detected
       the odor of marijuana emanating from the interior of the vehicle.
       Officer Alexander searched the truck [with Anthony’s consent] and
       found a duffle bag containing what he believed to be a
       vacuum-packed nine by [13] by two inch thick brick of marijuana.
       Officer Alexander asked Anthony Allen about the duffel bag and
       he stated that it was given to him by Thurmond Allen and that he
       did not know what was inside the bag. A gun was not found in
       the truck.

       Anthony Allen was arrested. He was transported to the Radnor
       Police Department and was found to be carrying [10] clear plastic
       baggies of suspected cocaine in an Altoids container, and an
       additional [37] “8 ball”[-]sized and [20] “dime bag” baggies of
       marijuana in the duffel bag.4

       During the interaction in the parking lot[,] an assisting officer went
       to Apartment 319 and attempted to make contact with Thurmond
       Allen. The door was ajar and the door frame was damaged
____________________________________________


3  Despite sharing the same last name, the trial court notes that the parties
are not related. Trial Court Opinion, 1/24/2018, at 3 n.4. In order to avoid
confusion, we will use full or first names throughout this memorandum.
Moreover, we note that the Commonwealth is also challenging the trial court’s
grant of suppression in Thurmond Allen’s case at 3868 EDA 2017.

4 Laboratory tests later confirmed that the substances were, in fact, cocaine
and marijuana, respectively.

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     consistent with forcible entry. Thurmond Allen did not respond to
     the officer’s repeated knocking but soon thereafter arrived and
     another officer met him. That officer requested consent to search
     the apartment for the gun allegedly used [during the prior,
     reported physical altercation], and Thurmond Allen refused.

     The neighbor[, Cynthia Neenan,] who called in the disturbance
     was contacted and she stated that she saw a violent fight outside
     her apartment and that she heard someone involved in the fight
     say that they had a gun.

     Officer Alexander concluded: “Due to the above information,
     including the sheer quantity of the narcotics, the damage to the
     apartment door, the statement of Cynthia Neenan regarding a
     possible firearm, along with the violent nature of narcotics deals
     and dealers,” he [] request[ed] a search warrant. The items to
     be searched for included[,] inter alia, marijuana, cocaine, drug
     paraphernalia, firearms, ammunition, proof of residency and
     records.

Trial Court Opinion, 1/24/2018, at 8-9 (most quotations omitted).

     Accordingly,

     Officer Alexander prepared the affidavit of probable cause in
     support of the search warrant application. The warrant issued and
     it was executed on January 23, 2017 by Officer Jonathon
     Jagodinski[,] who serves as a member of the Delaware County
     Drug Task Force.        Officer Jagodinski testified that several
     suitcases, bags, a couch, and a television were in a common living
     area of the apartment. No people were present during the search.
     He described one of the suitcases as a zipped up “carry on,”
     containing a modified shot gun with a sawed off barrel and a black
     ski mask. A cable bill bearing Thurmond Allen’s name was seized.
     Officer Jagodinski testified that he seized an unspecified piece of
     mail for Sabrina Allen. He also seized a grinder with marijuana
     residue and a roach with burnt marijuana that was possibly in the
     common area. He believed that [a recovered] bong was in a
     bedroom. [Officer Jagodinski] testified that the apartment was in
     transition and there was both male and female clothing in the
     apartment.

Id. at 4 (record citations and most quotations omitted).



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        The Commonwealth filed a criminal complaint on January 23, 2017,

charging Sabrina Allen, inter alia, with possession of a small amount of

marijuana, possession of drug paraphernalia, and two counts of conspiracy

(one count for each narcotics offense).5         Following a preliminary hearing, on

July 27, 2017, a magisterial district judge held Sabrina Allen for trial on the

charges. On August 23, 2017, the Commonwealth filed a criminal information

against Sabrina Allen, listing the four charges as set forth above.              On

September 5, 2017, Sabrina Allen filed a request for a bill of particulars. On

that same day, Sabrina Allen filed an omnibus motion seeking suppression of

the evidence recovered from Anthony Allen’s vehicle and Apartment 319. In

that motion, Sabrina Allen claimed that the police lacked probable cause for

the issuance of a search warrant. On September 6, 2017, Sabrina Allen filed

a motion for writ of habeas corpus, arguing that the Commonwealth failed to

present sufficient evidence to establish a prima facie case regarding the

pending charges. The trial court held a hearing on the motions on October 4,

2017.    On October 24, 2017, the trial court entered the orders at issue,

granting suppression and quashing the criminal information filed against

Sabrina Allen.

        In a subsequent opinion setting forth the grounds for ordering

suppression and quashing the information lodged against Sabrina Allen, the

trial court held that the affidavit of probable cause failed to justify the search
____________________________________________


5  35 P.S. § 780-113(a)(31), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.A.
§ 903, respectively.

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of Apartment 319.        Specifically, the trial court found that the veracity of

Anthony Allen was suspect and that Officer Alexander could not rely on his

statements because: (1) police arrested Anthony Allen with a large quantity

of marijuana; (2) Anthony Allen attempted to shift blame by claiming he did

not know what was inside the duffel bag; and, (3) Anthony Allen told Officer

Alexander that Thurmond Allen gave him the marijuana despite the physical

confrontation between the two moments before.                   Trial Court Opinion,

1/24/2018, at 10. The trial court opined that it was erroneous for Officer

Alexander to conclude that, “drugs and firearms could be found together in

the apartment based on Anthony Allen’s representation that he innocently

received [the] duffel bag from Thurmond Allen [and] that ‘narcotics deals and

dealers’ are violent by nature[.]” Id.         Thus, the trial court determined that

the Commonwealth failed to prove that there was probable cause to issue the

search    warrant    and    that   the    evidence   obtained   therefrom   required

suppression. This timely appeal resulted.6

____________________________________________


6    Because the 30th day of the appeal period fell during the Thanksgiving
holiday when the courts were closed, the Commonwealth filed a timely notice
of appeal on November 27, 2017. See Pa.R.A.P. 903 (notice of appeal shall
be filed within 30 days after the entry of the order from which the appeal is
taken); see also 1 P.S. § 1908 (whenever the last day of the appeal period
falls on a legal holiday, such time shall be omitted from the computation of
time). Moreover, pursuant to Pa.R.A.P. 311(d), the Commonwealth certified
in its notice of appeal that the orders under review “terminate[d] or
substantially handicap[ped] the prosecution.” On December 5, 2017, the trial
court ordered the Commonwealth to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The Commonwealth
complied timely. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on January 24, 2018.

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        On appeal, the Commonwealth presents the following issues for our

review:

        A. Whether the trial court erred as a matter of law in granting
           [Sabrina Allen’s] motion to suppress the evidence recovered
           following the execution of a search warrant at [Sabrina Allen’s]
           apartment?

        B. Whether the trial court erred as a matter of law in granting
           [Sabrina Allen’s] habeas motion for discharge where the
           Commonwealth presented a prima facie case for the charges?

Commonwealth’s Brief at 1.

        In its first issue presented, the Commonwealth argues that the trial

court     erred   by   granting   Sabrina     Allen’s   motion   for   suppression.

Commonwealth’s Brief at 12-20. Initially, the Commonwealth notes:

        In the instant case, the trial court concluded that the affidavit [in
        support of the issuance of a search warrant,] did not contain
        probable cause because the veracity of the information provided
        by Anthony Allen was suspect. The [trial] court noted that
        Anthony Allen was arrested while in possession of marijuana,
        attempted to distance himself from the contraband by claiming
        ignorance of the bag’s contents, and shifted blame to the man
        who he had recently fought. The [trial] court held that Anthony
        Allen’s condition and the damage to the door [of Apartment 319]
        suggested that an altercation took place there[,] but these facts
        indicate only that a fight took place and did not provide a
        substantial basis to conclude that illegal firearms and controlled
        substances would be found in the apartment.

        The [trial] court’s analysis is not complete because the [trial] court
        did not examine the totality of the circumstances. The information
        from Anthony Allen was only a small part of the information
        related by police in the affidavit. The [trial] court disregarded the
        rest of the information in the affidavit.

Commonwealth’s Brief at 15-16. More specifically, the Commonwealth posits

that an identified informant, a confirmed neighbor, told police that she saw a

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physical altercation outside of her apartment door, heard someone say they

had a gun, and witnessed a white pickup truck leaving the scene. Id. at 16.

Police corroborated this information when they found the door to the subject

apartment forcefully damaged and ajar and Anthony Allen “showed obvious

signs that he had been in a fight.” Id. at 17. Police stopped Anthony Allen in

a vehicle matching the neighbor’s description. Id. Anthony Allen and Sabrina

Allen admitted that they had just left Apartment 319 after Anthony Allen and

Thurman Allen physically fought. Id. Additionally, the Commonwealth argues

that when police smelled marijuana emanating from truck, there was probable

cause to search the vehicle. Id. at 17. When the police did not recover a

firearm during that search, the Commonwealth maintains it was reasonable to

suspect a gun remained inside the apartment. Id. at 19.               Thus, the

Commonwealth posits that,

      [w]hether [Thurmond Allen gave Anthony Allen] the marijuana,
      or, as is more likely[, Anthony Allen] forcibly took the marijuana,
      the fact remains that police had probable cause to believe as
      follows:

            [Anthony Allen] just left Apartment 319; there was a
            fight with a gun in Apartment 319; there was no gun
            in the truck; the man in the fight was in possession of
            a large amount of marijuana; the duffle bag of
            marijuana was easily transported; and [Anthony
            Allen] claimed he received the marijuana from a
            resident of that apartment.

Id. at 18-19.

      Our standard of review in addressing a challenge to the suppression

court's granting of a suppression motion is well settled:


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     When the Commonwealth appeals from a suppression order, we
     follow a clearly defined standard of review and consider only the
     evidence from the defendant's witnesses together with the
     evidence of the prosecution that, when read in the context of the
     entire record, remains uncontradicted. The suppression court's
     findings of fact bind an appellate court if the record supports those
     findings. The suppression court's conclusions of law, however, are
     not binding on an appellate court, whose duty is to determine if
     the suppression court properly applied the law to the facts.

     Our standard of review is restricted to establishing whether the
     record supports the suppression court's factual findings; however,
     we maintain de novo review over the suppression court's legal
     conclusions.

     With regard to search warrants, we have explained the following.

           It is well-established that for a search warrant to be
           constitutionally valid, the issuing authority must
           decide that probable cause exists at the time of its
           issuance, and make this determination on facts
           described within the four corners of the supporting
           affidavit, and closely related in time to the date of
           issuance of the warrant. It is equally well established
           that a reviewing court [must] pay great deference to
           an issuing authority's determination of probable cause
           for the issuance of a search warrant. Moreover, our
           Supreme Court has recognized that affidavits
           supporting search warrants normally are prepared by
           nonlawyers in the midst and haste of a criminal
           investigation, and, accordingly, said affidavits, should
           be interpreted in a common sense and realistic fashion
           rather than in a hypertechnical manner.

                          *           *            *

     In short, probable cause exists when, based upon a totality of the
     circumstances set forth in the affidavit of probable cause, there is
     a fair probability that evidence of a crime will be found in a
     particular place.

Commonwealth v. Korn, 139 A.3d 249, 252–254 (Pa. Super. 2016) (internal

citations and quotations omitted). Further,



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      [i]n reviewing an issuing authority’s decision to issue a warrant, a
      suppression court must affirm unless the issuing authority had no
      substantial basis for its decision. On appeal, [the appellate court]
      affirms the decision of the suppression court unless it commits an
      error of law or makes a factual finding without record support.

Commonwealth v. Lyons, 79 A.3d 1053, 1064 (Pa. 2013), citing

Commonwealth v. Johnson, 42 A.3d 10017, 1031 (Pa. 2012) and

Commonwealth v. Briggs, 12 A.3d 291, 320 (Pa. 2011).

      Here, upon careful review of the uncontradicted facts and applicable law,

we conclude the trial court erred by finding a lack of probable cause to support

the search warrant at issue. More specifically, the trial court erred by focusing

almost exclusively on Anthony Allen’s veracity in granting suppression, instead

of examining the totality of circumstances as set forth in the affidavit of

probable cause as required. Officer Alexander did not blindly accept Anthony

Allen’s statements to establish probable cause as the trial court suggests. By

their own admission, Anthony Allen and Sabrina Allen were leaving Apartment

319 immediately after a physical altercation. Sabrina Allen verified that she

lived there with Thurmond Allen. A neighbor, who police directly interviewed,

stated that she witnessed the fray and heard someone threaten to shoot

someone else.    Police corroborated the physical fight when they observed

Anthony Allen’s injuries and saw damage to the door of the apartment that he

recently departed. When the police did not recover a firearm from one of the

confirmed participants of the fight, Anthony Allen, it was reasonable for them

to assume a gun was still in the apartment. Moreover, when police legally


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recovered a large quantity of marijuana from Anthony Allen, who claimed it

originated from the apartment at issue, it was reasonable for them to believe

there was a fair probability of additional evidence of narcotics sales and/or

illicit use inside the apartment. Such inference was reasonable regardless of

the reason Anthony Allen gave for his receipt of the narcotics. In sum, when

the police applied for the search warrant at issue, they knew that there was a

physical altercation with the threat of a firearm and a large quantity of

narcotics, all centered on a specific, corroborated apartment.                  Thus, there

were separate and mutually confirmatory grounds for police to believe that a

firearm and evidence of narcotics use or sale would be found in Apartment

319. Thus, under a totality of the circumstances as clearly set forth in the

affidavit of probable cause, there was a fair probability that police would find

evidence of a firearm and narcotics in Apartment 319. As such, we conclude

that the trial court erred in suppressing the evidence found therein.

Accordingly, we reverse the order granting suppression.

      Next, the Commonwealth asserts that the trial court erred by granting

habeas relief and quashing the criminal information against Sabrina Allen,

because     it    established     a   prima    facie   case   for   all   of   the   charges.

Commonwealth’s Brief at 20-29.

      We review a decision to grant a pre-trial petition for a writ of habeas

corpus by examining the evidence and reasonable inferences derived

therefrom        in   a   light   most   favorable     to   the   Commonwealth.          See


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Commonwealth v. Dantzler, 135 A.3d 1109, 1111 (Pa. Super. 2016).

Whether a prima facie case has been established is a question of law and our

review is plenary. Id. at 1112.

      Moreover, we have 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.        A prima facie case exists when the
      Commonwealth produces evidence of each of the material
      elements of the crime charged and establishes probable cause to
      warrant the belief that the accused committed the offense.
      Further, the evidence must be considered in the light most
      favorable to the Commonwealth so that inferences that would
      support a guilty verdict are given effect.

      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. [Furthermore,] 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, quotations, and original brackets omitted).

      In this case, the Commonwealth charged Sabrina Allen with the

following prohibited acts under the Controlled Substance Act:

      (31) […] the possession of a small amount of marihuana only for
      personal use[.]

                           *           *            *

      For purposes of this subsection, thirty (30) grams of marihuana
      or eight (8) grams of hashish shall be considered a small amount
      of marihuana.

      (32) The use of, or possession with intent to use, drug
      paraphernalia for the purpose of planting, propagating,

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      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(31)-(32).

      We have previously determined:

      possession can be found by proving actual possession,
      constructive possession, or joint constructive possession. Where
      a defendant is not in actual possession of the prohibited items, the
      Commonwealth must establish that the defendant had
      constructive possession to support the conviction. Constructive
      possession is a legal fiction, a pragmatic construct to deal with the
      realities of criminal law enforcement.           We have defined
      constructive possession as conscious dominion, meaning that the
      defendant has the power to control the contraband and the intent
      to exercise that control. To aid application, we have held that
      constructive possession may be established by the totality of the
      circumstances.

      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) (internal

citations and quotations omitted).      Additionally, our Supreme Court has

recognized that “constructive possession may be found in one or more actors

where the item in issue is in an area of joint control and equal access.”

Commonwealth v. Johnson, 26 A.3d 1078, 1094 (Pa. 2011) (internal

citation omitted).




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      As discussed earlier, it is undisputed that Sabrina Allen resided at the

subject apartment and had just left there.       There was nothing indicating that

only one resident had sole access to the seized bong, grinder, and burnt

marijuana roach recovered by police. Those items were found throughout the

apartment where both Sabrina and Thurmond Allen had access. Thus, we

conclude that the Commonwealth presented prima facie evidence of the

possessory narcotics charges against Sabrina Allen.

      To establish a conspiracy, “the Commonwealth must establish that the

defendant (1) entered an agreement to commit or aid in an unlawful act with

another person or persons, (2) with a shared criminal intent and, (3) an overt

act was done in furtherance of the conspiracy.”        Commonwealth v. Ruiz,

819 A.2d 92, 97 (Pa. Super. 2003) (internal citation omitted). “This overt act

need not be committed by the defendant; it need only be committed by a co-

conspirator.”    Id.      Factors considered in determining the existence of a

conspiracy      include     evidence   of   an    association   between   alleged

co-conspirators, knowledge of the commission of a crime, and presence at the

crime scene.       Id. (citations omitted). Moreover, we have previously

determined that the same evidence establishing joint constructive possession

of a controlled substance may also support a finding of a conspiracy to possess

it. See Commonwealth v. Kitchener, 506 A.2d 941, 946 (Pa. Super. 1986).

Here, we conclude that the Commonwealth’s evidence of joint constructive

possession also supports a prima facie showing of conspiracy charges against


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Sabrina Allen. For all of the foregoing reasons, we conclude that the trial court

erred by granting habeas relief and quashing the criminal information in this

matter.7

       Orders reversed. Case remanded for further proceedings. Jurisdiction

relinquished.



    Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/18




____________________________________________


7  We note that the trial court states that Sabrina Allen was “charged with
conspiring with Anthony Allen to use or possess the contraband that was
discovered in the apartment.” Trial Court Opinion, 1/24/2018, at 5 (emphasis
added). Upon review, the criminal information filed by the Commonwealth
does list Sabrina Allen’s co-conspirator as Anthony Allen, rather than
Thurmond Allen. However, despite the discrepancy, as discussed above, the
Commonwealth provided prima facie evidence of a conspiracy between the
co-residents of the apartment. A criminal information may be amended “when
there is a defect in form, the description of the offense(s), the description of
any person or any property, or the date charged, provided the information as
amended does not charge an additional or different offense.” Pa.R.Crim.P.
564.

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