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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                        :
                                                :
JUAN ANDLNO,                                    :
                                                :
                              Appellee          :
                                                :       No. 31 EDA 2015


                   Appeal from the Order December 3, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0010882-2014

BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.:                                      FILED JULY 29, 2016

      The Commonwealth appeals from the trial court’s December 3, 2014

Order entered by the Philadelphia County Court of Common Pleas quashing

all charges against Appellee, Juan Andlno. After careful review, we reverse

the   trial court’s        December   3, 2014       Order   and remand for   further

proceedings.

      On August 22, 2013, Detective Dennis Demas responded to Appellee’s

home at 517 Morse Street in Philadelphia for a reported stabbing.              N.T.

Preliminary Hearing, 9/25/14, at 5. Detective Demas found a large amount

of blood trailed throughout the house, as well as through the neighboring

house at 519 Morse Street, which was connected through a second-floor

opening cut in the wall between the two front bedrooms. Id. at 5-6. After
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conducting further investigation, Detective Demas interviewed Appellee at

the hospital. Id. at 6-7.

        Detective Demas executed a search warrant at 517 Morse Street and

recovered 1,065 grams of marijuana divided into multiple sandwich-size

bags all tied in a knot, additional baggies, a digital scale, and proof of

Appellee’s residency at 517 Morse Street. Id. at 6. Appellee admitted to

Detective Demas that he was the victim of the stabbing, that he lived alone

at 517 Morse Street, and that his child’s mother and his child lived in the

connected house at 519 Morse Street. Id. at 6.

        The Commonwealth charged Appellee with Possession of a Controlled

Substance With Intent to Deliver (“PWID”) and Possession of a Controlled

Substance.1 On September 25, 2014, at Appellee’s preliminary hearing, the

Commonwealth called Detective Dennis Demas who testified regarding the

events leading up to and including the search of Appellee’s abode and

Appellee’s statements.      Appellee proffered the property receipts for the

items removed from the premises.        The property receipts state that the

items had been recovered from 519 Morse Street.          Appellee moved for

quashal, arguing that because he lived in the conjoined building located at

517 Morse Street, and not at the address listed on the property receipts, the

Commonwealth did not establish a prima facie case against him. Id. at 10-


1
    35 P.S. § 780-113(a)(30); and 35 P.S. § 780-113(a)(16), respectively.




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13. The Honorable T. Francis Shields held the case for trial, concluding that

the Commonwealth had met its burden and had established the prima facie

case. Id. at 14.

        On November 13, 2014, Appellee filed a written Motion to Quash

based on the issue of the address on the property receipts.2 On December

3, 2014, at the conclusion of a hearing on Appellee’s Motion to Quash, the

Honorable Harold M. Kane denied the Commonwealth’s request to present

clarifying testimony, and granted the Motion without explanation.3             N.T.

Motion, 12/3/14, at 4-7.


2
    This Court has observed that

        a petition labeled a ‘Motion to Quash’ [is] in fact a writ of habeas
        corpus     attacking     the    magistrate’s   finding    that   the
        Commonwealth at the preliminary hearing had established a
        prima facie case. When the substance of the ‘Motion to Quash’
        is identical to that of a writ of habeas corpus, the reviewing court
        undertakes an identical inquiry in disposing of the issue asserted
        and the relief sought is the same, there is no reason why an
        error in label should prevent a court from seeing that justice is
        done.

Commonwealth v. Orman, 408 A.2d 518, 520 (Pa. Super. 1979) (internal
citation omitted).
3
 Judge Kane summarily resolved Appellee’s Motion to Quash in the following
exchange:

        Commonwealth: I have case law that supports the
        Commonwealth’s position.
        The Court: Well [inaudible] the Superior Court because I’m
        ruling against it.
        Commonwealth: May I supplement the record, Your Honor?
        The Court: No.



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      On December 23, 2014, the Commonwealth filed a Notice of Appeal

and a voluntary Pa.R.A.P. 1925(b) Statement.        Judge Kane did not file a

Rule 1925(a) Opinion.

      The Commonwealth presents one issue for our review:

      Did the lower court err in quashing all charges against
      [Appellee], where the evidence was sufficient to establish a
      prima facie case?

Appellant’s Brief at 4.

      “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.”

Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005) (internal

quotation and citation omitted).     “A trial court may grant a defendant’s

petition for writ habeas corpus where the Commonwealth has failed to

present a prima facie case against the defendant.” Id.

      It is well-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, 880 A.2d 505, 513 (Pa. 2005). Our scope of review is limited to

determining whether the Commonwealth established a prima facie case.




N.T. Motion, 12/3/14, at 5-6.



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Commonwealth v. Patrick, 933 A.2d 1043, 1045 (Pa. Super. 2007)

(citation omitted).

      The basic principles of law regarding the establishment of a prima facie

case at a preliminary hearing are well settled.

      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. It is not necessary for the
      Commonwealth to establish at this stage the accused’s guilt
      beyond a reasonable doubt. In order to meet its burden at the
      preliminary hearing, the Commonwealth is required to present
      evidence with regard to each of the material elements of the
      charge and to establish sufficient probable cause to warrant the
      belief that the accused committed the offense.

Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991) (internal

citations omitted).    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.” Commonwealth v. Landis, 48 A.3d

432, 444 (Pa. Super. 2012) (quotation, citation, and boldface omitted).

      “The standard clearly does not require that the Commonwealth prove

the accused’s guilt beyond a reasonable doubt at this stage.” Id.     (citation

and quotation omitted).    Most significant in this appeal, “[t]he weight and

credibility of the evidence is not a factor at this stage.” Id.

      In the instant case, the Commonwealth charged Appellee with

possession of a controlled substance and PWID. With respect to the charge

of possession of a controlled substance, the Commonwealth was required to


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present evidence to show that Appellee probably impermissibly “[k]nowingly

or intentionally possess[ed] a controlled or counterfeit substance[.]” 35 P.S.

§ 780-113(a)(16). Because the police officers did not recover the marijuana

from Appellee’s person, the Commonwealth was required to prove that

Appellee had constructive possession of the marijuana. Commonwealth v.

Macolino, 469 A.2d 132, 134 (Pa. 1983).

      To prove constructive possession, the Commonwealth must show that

the   accused   “exercise[d]   a   conscious   dominion    over   the   illegal

[contraband.]” Commonwealth v. Valette, 613 A.2d 548, 550 (Pa. 1992).

Conscious dominion is the “power to control the contraband and the intent to

exercise that control.” Id. (citing Commonwealth v. Macolino, 469 A.2d

132, 134 (Pa. 1983)).

      In the instant case, Detective Demas testified at the preliminary

hearing that he recovered, inter alia, 1,065 grams of marijuana from 517

Morse Street pursuant to the search warrant. N.T. Hearing, 9/25/14, at 6.

Detective Demas also testified that Appellee had told him that he resided at

517 Morse Street alone, and that he had been stabbed at that location. Id.

Detective Demas corroborated these admissions by recovering additional

proof of Appellee’s residency at 517 Morse Street. Id. The totality of the

evidence supported the reasonable inference that Appellee constructively

possessed the marijuana found in his house. See Commonwealth v.

Parsons, 570 A.2d 1328, 1334-35 (Pa. Super. 1990) (concluding that the



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defendant constructively possessed drugs and paraphernalia located in every

room of the house he shared with his girlfriend). The Commonwealth, thus,

presented a prima facie case that Appellee possessed a controlled substance.

      With respect to the PWID charge, the Commonwealth needed to

present sufficient evidence to show that Appellee probably “possess[ed] with

intent to manufacture or deliver, a controlled substance[.]” 35 P.S. § 780-

113(a)(30).    The Commonwealth here presented such evidence, which

included the large quantity of the drugs, the manner of packaging, the

additional baggies, the scale, and the absence of paraphernalia for drug use.

See Commonwealth v. Heater, 899 A.2d 1126, 1131 (Pa. Super. 2006)

(concluding that “[r]elevant factors in establishing intent [to deliver] include

the quantity of drugs possessed, the manner of packaging, the absence of

paraphernalia for drug use, [and] the behavior of the defendant[.]”

(citations omitted)).

      In his brief, Appellee argues that the trial court properly quashed the

charges because of the conflict between Detective Demas’ testimony

regarding the address from which officers recovered the drugs (517 Morse

Street) and the address listed on the property receipts (519 Morse Street).

This argument fundamentally implicates the weight and credibility to be

given to the evidence.

      Any conflicts or discrepancies in the evidence, which are questions

regarding the weight and credibility of evidence, must be resolved by the



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fact-finder at trial, not at the preliminary hearing.     See Landis, supra at

448.   In Landis, this Court concluded that the trial court had committed

reversible error where it improperly weighed the police officer’s credibility in

evaluating the prima facie case by evaluating “the weight to be given to the

location of the bullet and the reasons Appellee did not succeed in actually

shooting a police officer.”     Id.    We explained that the trial court had

“improperly weighed the evidence and failed to properly view the evidence in

the light most favorable to the Commonwealth, as is required under the

appropriate standard of review.” Id. We emphasized in Landis that “it is

inappropriate for the trial court to make credibility determinations in

deciding whether the Commonwealth established a prima facie case.”                Id.

Rather, “the charge must be bound over for trial if evidence of the existence

of each element of the offense is presented.” Id. (citations omitted).

       In granting the Motion to Quash, which was based only on the

discrepancy between the officer’s testimony and the address on the property

receipts, Judge Kane evaluated the weight and credibility of the evidence in

contravention   of   the   standard    of   review   applicable    to    prima   facie

determinations. In doing so, he assumed the responsibilities of a fact-finder.

This   was   improper.        See     McBride,   supra     at     591;    see    also

Commonwealth v. Maute, 485 A.2d 1138, 1144-45 (Pa. 1984) (stating

that “[m]ere evidence of a conflict in the prosecution’s evidence is not fatal

to its case” (citation omitted)).     The Commonwealth was not obligated to



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present additional evidence, to develop its case with any more certainty or

clarity, or to explain the existence of disputed or contradictory evidence,

such     as     the   address    on   the   property   receipt.      See    generally

Commonwealth v. Rashed, 436 A.2d 134, 137 (Pa. 1981) (stating, “there

is no obligation, constitutional or otherwise, on the Commonwealth to

produce all of its potential witnesses at a preliminary hearing.”).

         Thus, in the instant case, the trial court needed to view Detective

Demas’ testimony in the light most favorable to the Commonwealth as

required by the appropriate standard of review. Landis, supra at 444. This

is exactly what Judge Shields did before concluding that the Commonwealth

had established a prima facie case.

         After reviewing the evidence presented at the preliminary hearing in

the light most favorable to the Commonwealth, as we must, we conclude

that the Commonwealth met “its 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.”           McBride, supra at 591.          To view the evidence

otherwise would be to view it in the light most favorable to Appellee.

         Accordingly, we reverse the trial court’s December 3, 2014 Order,

direct    the    court   to   reinstate   the   charges,   and    remand   for   further

proceedings.

         Order reversed. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/29/2016




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