J-S31021-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                        Appellant          :
                                           :
            v.                             :
                                           :
MICHAEL J. HARRIS,                         :
                                           :
                        Appellee           :     No. 1867 EDA 2013


                Appeal from the Order Entered May 23, 2013,
            In the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No. CP-51-CR-0009270-2012.


BEFORE: BOWES, SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED SEPTEMBER 04, 2014



appeals from the order entered on May 23, 2013, that quashed five of the

six criminal charges filed against Appellee, Michael J. Harris, prior to trial.1

We reverse and remand for further proceedings.

      The trial court set forth the factual history of this matter as follows:

            On July 20, 2012 at 8 pm, Philadelphia Police Officer
      Marvin Ruley observed [Appellee], standing with Darryl G[]ass at
      the north eight hundred block of 43rd Street in Philadelphia. N.T.
      8 6/2012 at 4-5. [Appellee] and Mr. G[]ass engaged in brief
      transactions with two individuals while standing next to a black
      [J]eep. Id. at 6. One of these individuals, Helen White, was
      subsequently stopped, and four packets of what was allegedly
      cocaine were found on her person. Id. At or around 8:15pm,


1
                     minal charges prior to trial is appealable by the
              Commonwealth v. McBride, 595 A.2d 589, 590 n.3 (Pa.
1991); Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005).
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      [Appellee] was observed getting into a gold Chrysler [Cir]rus and
      driving away Id. at 7. [Appellee] was subsequently stopped, and
      $254 was recovered from his person. Mr. Gass was also stopped,
      and no contraband was found on his person. Id. at 7-8. Officers
      then approached the black [J]eep, where they found a purple
      container, containing nineteen red tinted packets, on the
      windshield. Officers were able to see a similar packet on the floor
      of the [J]eep through the window. Id. at 8. They then secured a
      search warrant, and recovered one red tinted packet of crack
      cocaine, one clear bag containing fifty red packets of crack
      cocaine, and a .32 caliber Smith & Wesson handgun from inside
      the vehicle. Id. at 8-9, 20.

Trial Court Opinion, 8/22/13, at 1-2.

      The   Commonwealth charged Appellee           with one   count each of

possession of co

not to be carried without a license, possession of a controlled substance,

carrying a firearm in public in Philadelphia, possession of an instrument of

                                              elon, and one count of conspiracy

to commit PWID. On September 26, 2012, the Commonwealth withdrew the

conspiracy to commit PWID charge, and the balance of the charges were

bound over for court.

      On December 26, 2012, Appellee filed a motion to quash the

remaining six charges.     In an order filed on May 23, 2013, the trial court



of a firearm by a felon.

      The Commonwealth filed a timely appeal and on appeal raises the

following issue for this Court:


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     Did the lower court err in quashing charges where the evidence
     was sufficient to establish a prima facie case of firearms
     violations and possession of a controlled substance with intent to
     deliver?



     The decision to grant a motion to quash criminal charges is within the

discretion of the trial court and will be reversed on appeal only where there

has been an abuse of that discretion. Commonwealth v. Weigle, 949 A.2d

899, 902 (Pa. Super. 2008) (citations omitted).

     Judicial discretion requires action in conformity with law, upon
     facts and circumstances judicially before the court, after hearing
     and due consideration. An abuse of discretion is not merely an
     error of judgment, but if in reaching a conclusion the law is
     overridden or misapplied or the judgment exercised is manifestly
     unreasonable, or the result of partiality, prejudice, bias, or ill
     will, as shown by the evidence or the record, discretion is
     abused.

Commonwealth v. McCullough, 86 A.3d 896, 898 (Pa. Super. 2014)

(citation and quotation marks omitted).

     Our   scope   of   review   is   limited   to   determining   whether   the

Commonwealth established a prima facie case.               Commonwealth v.

Patrick, 933 A.2d 1043, 1045 (Pa. Super. 2007) (citation omitted).           The

Commonwealth is required to establish sufficient probable cause to show

that the defendant committed the offense, and 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. Id.




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     When deciding whether a prima facie case was established, we
     must view the evidence in the light most favorable to the
     Commonwealth, and we are to consider all reasonable inferences
     based on that evidence which could support a guilty verdict. The
     standard ... does not require that the Commonwealth prove the


Id. (citations and quotation marks omitted). The prima facie case standard

requires evidence of each element of the crime charged, and weight and

credibility of the evidence are not factors at this stage of proceedings. Id.

(citing Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001)).



guilt beyond a reasonable doubt at this stage. McCullough, 86 A.3d at 899

(citing Commonwealth v. Landis, 48 A.3d 432, 444 (Pa. Super. 2012)).

     While the record in this matter discloses that Appellee was not

arrested in actual physical possession of the firearm or cocaine, actual

physical possession is not required for conviction.        A person may be

convicted of a possessory offense if the Commonwealth establishes

constructive possession.

     Constructive possession is an inference arising from a set of
     facts that possession of the contraband was more likely than not.



                                              have held that constructive
     possession may        be   established   by the totality of the
     circumstances.

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

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004)).

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Constructive possession can be proven by circumstantial evidence and the



                                Commonwealth v. Clark, 746 A.2d 1128,

1136 (Pa. Super. 2000) (quoting Commonwealth v. Haskins, 677 A.2d

328, 330 (Pa. Super. 1996)).

     Here, the Commonwealth was required to establish sufficient probable

cause that Appellee committed the following criminal acts:

     Prohibited acts; penalties

     (a) The following acts and the causing thereof within the
     Commonwealth are hereby prohibited:

                                   ***

           (16) Knowingly or intentionally possessing a
           controlled or counterfeit substance by a person not
           registered under this act, or a 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).

     Prohibited acts; penalties

     (a) The following acts and the causing thereof within the
     Commonwealth are hereby prohibited:

                                   ***

           (30) Except as authorized by this act, the
           manufacture, delivery, or possession with intent to
           manufacture or deliver, a controlled substance by a


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           person not registered under this act, or a practitioner
           not registered or licensed 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).

     Possessing instruments of crime

     (a) Criminal instruments generally.--A person commits a
     misdemeanor of the first degree if he possesses any instrument
     of crime with intent to employ it criminally.

18 Pa.C.S.A. § 907.

     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.

18 Pa.C.S.A. § 6106(a)(1).

     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).


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18 Pa.C.S.A. § 6108.

      In the instant case, the record reflects that Officer Marvin Ruley

testified that he saw Appellee engage in multiple exchanges of small items

for U.S. currency while he was standing next to a Jeep Cherokee.           N.T.,

8/6/12, at 5-9.    One of the people who made such an exchange with

Appellee, Helen White, was immediately apprehended and found in

possession of four red-tinted packets of suspected crack cocaine. Id. at 6.

During these exchanges, Appellee and his cohort, Mr. Gass, were positioned

next to, in front of, or behind the Jeep.   Id. at 5-9.   When Appellee was

apprehended, he was found in possession of $254.00 but no narcotics. Id.

at 7-8.   However, when officers approached the Jeep next to which Appellee

had been standing while he engaged in the aforementioned hand to hand

exchanges, they saw a purple plastic container.       Id. at 8.    This purple

container, which looked like a chewing gum container, was wrapped in black

tape. Id. at 8, 16. The container was not inside the Jeep, but rather it was

sitting outside the vehicle on the windshield next to the wiper blades. Id. at

16.   Inside this container were nineteen red-tinted packets of suspected

crack cocaine, similar to those found on Helen White.       Id. at 6, 8.    The

discovery of this cache of suspected crack cocaine led the officers to obtain a

search warrant for the Jeep, and as mentioned above, more suspected crack




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cocaine, which was also wrapped in red-tinted plastic, was discovered inside

the Jeep along with a firearm. Id. at 20.

      Officer Paul Perez testified that in securing the search warrant for the

Jeep, he learned that it was registered in the name of Michael Harris, which



Appellee was the owner of the Jeep or whether his son, Michael Harris Jr.,

was the owner.    Id.   Regardless, what is clear is that the Jeep was not

owned by an unknown third party.      The dispute over ownership does not

support dismissal of the charges because, even if the Jeep was owned by



control.   Thus, a dispute over ownership of the Jeep was not a basis for

dismissal of the charges at the preliminary hearing stage of the proceedings.

      After reviewing the evidence presented at the preliminary hearing in

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

there was sufficient probable cause to show that Appellee committed the

aforementioned possessory offenses, such that, if presented at trial, and

accepted as true, the judge would be warranted in allowing the case to go to

the jury. Patrick, 933 A.2d at 1045. To view the evidence otherwise would

be to view it in the light most favorable to Appellee. That would cause this

Court to accept that it was nothing more than coincidence that a container of

suspected crack cocaine, packaged identically to the packets found on Helen




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White and inside the Jeep, was simply sitting on the windshield of a vehicle

next to which Appellee was exchanging money for small objects. Based on

our standard of review, we cannot reach that conclusion.

      Accordingly, we are constrained to reverse the order dismissing the

charges against Appellee, and we remand for further proceedings. We offer

no opinion as to whether the Commonwealth will ultimately be able to prove

the charges against Appellee beyond a reasonable doubt as that is not the

standard to be applied at this juncture. McCullough, 86 A.3d at 899.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/4/2014




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