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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 05, 2014

        The Commonwealth appeals from the order of December 11, 2013

precluding it from proceeding to trial against Appellee, Michael Gay, on the

refiled charges of possession of a controlled substance (cocaine) and

possession with intent to deliver (PWID) a controlled substance. 1        After

careful review, we hold that the Commonwealth presented sufficient

evidence to prove a prima facie case that Appellee constructively possessed

the cocaine discovered in the vehicle’s glove box.         We vacate the order

dismissing the refiled charges and remand for trial.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. §§ 780-113(a)(16) and (30), respectively.
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       The trial court summarized the procedural history of this case as

follows:

              Appellee [] was arrested and charged with [p]ossession of
       [m]arijuana, [p]ossession of a [c]ontrolled [s]ubstance, and
       [p]osession of a [c]ontrolled [s]ubstance with [i]ntent to
       [d]eliver (PWID). The [municipal] court dismissed the charges
       for lack of evidence on May 9, 2013. On June 21, 2013, the
       Commonwealth re-filed its criminal complaint listing identical
       charges.

             On December 11, 2013, [the trial] [c]ourt held a
       preliminary re-file hearing. Th[e] [c]ourt, after hearing oral
       argument, agreed with the [municipal] court that the
       Commonwealth failed to make out a prima facie case as to the
       PWID and [p]ossession of a [c]ontrolled [s]ubstance charges.
       Th[e] [c]ourt, however, determined that there was sufficient
       evidence to hold Appellee on the possession of marijuana
       charge. . . .

(Trial Court Opinion, 2/04/14, at 1-2) (footnotes and record citation

omitted).

       On January 10, 2014, the Commonwealth timely appealed, 2 certifying

that the court’s December 11, 2013 order terminates or substantially

handicaps the prosecution.3 See Pa.R.A.P. 311(d).

____________________________________________


2
  The Commonwealth simultaneously filed its Rule 1925(b) statement. The
court entered its Rule 1925(a) opinion on February 4, 2014. See Pa.R.A.P.
1925.
3
  This Court notes that the general rule in Pennsylvania is an order finding
that the Commonwealth has failed to establish a prima facie case is not an
appealable final order because it gives the accused his liberty for the present
and leaves him subject to rearrest. See Commonwealth v. Weigle, 997
A.2d 306, 308 n.5 (Pa. 2010). “However, under Philadelphia County Local
Criminal Rule 500(H), Common Pleas Motions Court judges’ orders
(Footnote Continued Next Page)


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      The Commonwealth raises the following question for our review:

      Did the lower court err in precluding the Commonwealth from
      proceeding on its re-filed charges where the evidence
      established a prima facie case that [Appellee] possessed with
      intent to deliver the 41.52 grams of cocaine found in the car that
      he alone occupied?

(Commonwealth’s Brief, at 5).

      Our standard of review is well-settled:

      [T]he 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. 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.

Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005) (citation

omitted).

      Here, the Commonwealth asserts that the trial court “erred in

precluding [it] from proceeding on its refiled charges where the evidence

established a prima facie case that [Appellee] possessed and intended to

deliver cocaine.”       (Commonwealth’s Brief, at 10 (capitalization omitted)).

Specifically, it argues that the trial court committed legal error because it

made impermissible credibility determinations at the preliminary hearing.

(See id. at 10-19). We agree.

                       _______________________
(Footnote Continued)

discharging an accused or denying a rearrest petition constitute final orders
subject to appellate review.” Id. at 309 (noting that review by another
judicial officer is not available in Philadelphia).



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           At the preliminary hearing stage of a criminal prosecution,
     the Commonwealth need not prove the defendant’s guilt beyond
     a reasonable doubt, but rather, must merely put forth sufficient
     evidence to establish a prima facie case of guilt. 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. Furthermore, the evidence need only be such that,
     if presented at trial and accepted as true, the judge would be
     warranted in permitting the case to be decided by the jury.

Karetny, supra at 513-14 (citations omitted).

            Constructive possession is a legal fiction, a pragmatic
     construct to deal with the realities of criminal law enforcement.
     Constructive possession is an inference arising from a set of
     facts that possession of the contraband was more likely than not.
     We have defined constructive possession as conscious dominion.
     We subsequently defined conscious dominion as the power to
     control 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.

Commonwealth v. Kinard, 95 A.3d 279, 292 (Pa. Super. 2014) (en banc)

(quoting Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012),

appeal denied, 63 A.3d 1243 (Pa. 2013)).

     Expert “testimony is [an] aid in determining whether the facts

surrounding the possession of controlled substances are consistent with

intent to deliver.” Commonwealth v. Baker, 72 A.3d 652, 659 (Pa. Super.

2013), appeal denied, 86 A.3d 231 (Pa. 2014) (citation omitted).

     Here, the record reflects that Officer Mitchell Yanak testified that he

was on a routine tour of duty on “January 10th of 2013 at around 10:14 in

the evening . . . [in] the area of 1800 North 16th Street in the city and

county of Philadelphia . . . [when he stopped Appellee’s vehicle because] the



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tag did not match the vehicle.” (N.T. Preliminary Hearing, 12/11/13, at 8-

10; see also Trial Ct. Op., 2/04/14, at 2).       Officer Yanak further testified

that:

        We asked [Appellee] to step out, did a protective pat-down, we
        were talking to him at the back of the vehicle, he was telling us
        that the vehicle is legit and all the paperwork was good. At this
        point he asked us to get the paperwork out of the glove box. I
        went to the glove box, opened the glove box and the bag . . . of
        a white powdery substance, alleged cocaine [was there].

(N.T. Preliminary Hearing, 12/11/13, at 11; see also Trial Ct. Op., at 2-3).

        Accordingly, the Commonwealth did present sufficient evidence that

Appellee was the sole occupant, in control of the vehicle, and invited the

officers to open the glove box.      See Karetny, supra at 513-14; Kinard,

supra at 292. Therefore, we conclude that the trial court erred in finding

that the Commonwealth did not establish a prima facie case that Appellee

constructively possessed the cocaine to support the charges of possession

and PWID. See Karetny, supra at 513-14; Kinard, supra at 292.

        Additionally, Appellee stipulated “to the preliminary hearing only that if

an expert were called to testify, he would testify that whoever possessed

these drugs possessed them with the intent to deliver them.”                (N.T.

Preliminary Hearing, 12/11/13, at 16-17). Therefore, we conclude that that

the trial court erred when it found that the Commonwealth did not establish

a prima facie case for PWID. See Baker, supra at 659.

        Moreover, the issues of whether Appellee possessed the cocaine and

possessed it with the intent to deliver are issues of credibility for the fact


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finder to determine at trial.   See Commonwealth v. Williams, 911 A.2d

548, 551 (Pa. Super. 2006) (stating that credibility determinations based on

facts are not for the trial court at the preliminary hearing stage).

      Here, the record reflects that the trial court found:

      The record is devoid of any evidence indicating that [Appellee’s]
      fingerprints were found on the contraband or on the plastic
      baggie containing the contraband. There is no evidence that any
      of [Appellee’s] personal effects were found alongside or near the
      offending contraband in the glove box. The record is devoid of
      any evidence indicating that [Appellee] owned the subject
      vehicle; it is equally possible that the drugs, unbeknownst to
      [Appellee], were placed in the glove box compartment by the
      true owner or by someone else. Moreover, the record is devoid
      of any evidence indicating that [Appellee] knew the drugs were
      being stored in that location. [Appellee] did not make any
      sudden, suspicious, or furtive movements towards the glove box
      when the officer first approached the vehicle. [Appellee] was
      cooperative and fully complied with all of the officer’s
      instructions during the vehicle stop. In fact, he actually invited
      the officer to inspect the glove box and to retrieve paperwork
      (registration, insurance, etc.) pertaining to the vehicle
      therefrom.

(Trial Ct. Op., at 6-7) (emphases in original).

      We conclude that the trial court erred “by making credibility and

weight determinations, [that], in effect, imposed on the Commonwealth a

higher standard of proof than that which is necessary to prove a prima facie

case.” Williams, supra at 551 (citations omitted).

      Accordingly, we vacate the order dismissing the refiled charges of

possession of a controlled substance (cocaine) and PWID.

      Order vacated and case remanded for trial. Jurisdiction relinquished.

      Gantman, P.J., joins the Memorandum.


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     Bender, P.J.E., files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2014




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