J-S19029-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 SAIHEED M. JERKINS                       :
                                          :
                    Appellant             :   No. 1296 EDA 2019

               Appeal from the Order Entered March 27, 2019
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): MC-51-CR-0029647-2018

BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY McCAFFERY, J.:                            FILED MAY 15, 2020

      The Commonwealth appeals from the order entered in the Philadelphia

Court of Common Pleas denying the Commonwealth’s motion to reinstate gun

possession charges against Saiheed M. Jerkins (Appellee) after dismissal of

those charges at the preliminary hearing.     The Commonwealth argues the

court erred in finding insufficient evidence for a prima facie case. We reverse.

      On November 21, 2018, Pennsylvania State Police Troopers sought

Appellee in Montgomery County on a material witness warrant issued in an

unrelated matter. When serving the warrant, they observed Appellee leaving

a family member’s house in a relative’s car. They pursued him, eventually

pulling him over in Philadelphia. Appellee abandoned the car, fleeing on foot.

The troopers apprehended him immediately. When they searched the car,

they found a handgun stored in the closed center console.
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        The Commonwealth charged Appellant with persons not to possess

firearms, firearms not to be carried without a license, and carrying firearms

on public streets in Philadelphia.1 Appellee was also charged with reckless

endangerment of another person2 (REAP), as when he abandoned the car, he

did not put it in park, and it rolled toward the police vehicle that had stopped

in front of him. On January 10, 2019, at Appellee’s preliminary hearing, the

Municipal Court found that the Commonwealth had not made a prima facie

case as to the gun charges.      The REAP charge survived the preliminary

hearing.

        On January 14, 2019, the Commonwealth filed a notice of refiling of

criminal complaint in the Court of Common Pleas (trial court). On March 27,

2019, the trial court held a hearing, allowing the Commonwealth to

incorporate and supplement the preliminary hearing evidence.          After the

hearing, the trial court denied the Commonwealth’s motion to refile the gun

charges. The Commonwealth filed a motion for reconsideration, which was

denied on April 4, 2019. The Commonwealth filed a timely notice of appeal

on April 25, 2019, in which it certified that the order terminated or

substantially handicapped the prosecution per Pa.R.A.P. 311(d), and timely

complied with the court’s Pa.R.A.P. 1925(b) order.




1   18 Pa.C.S. §§ 6105, 6106, 6108.

2   18 Pa.C.S. § 2705.

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      The Commonwealth presents one issue for our review:

      Did the court err in ruling that there was insufficient evidence for
      a prima facie case of three counts of violation of the Uniform
      Firearms Act (18 Pa.C.S. §§ 6105, 6106, and 6108)?

Commonwealth’s Brief at 4. The Commonwealth argues that the trial court

failed to accept as true all evidence presented as well as all reasonable

inferences therefrom. It argues that Appellee’s presence in and control of the

car, without more, is enough to establish a prima facie case as to the gun

charges and that therefore it was error to hold otherwise. Id. at 7.

      Appellee argues that the Commonwealth failed to establish his

awareness of the handgun, and therefore could not make out a prima facie

case that he possessed it. Because there was no evidence that he was aware

of the handgun, Appellee asserts, the Commonwealth’s motion to reinstate

charges was properly denied. Appellee’s Brief at 5-6.

      The trial court, which denied the Commonwealth’s motion to reinstate

the charges after dismissal at the preliminary hearing, focused its inquiry on

the Commonwealth’s theory that Appellee’s flight from the car was evidence

of consciousness of guilt. According to this theory, Appellee was aware of the

gun’s presence in the car and wanted to distance himself from it, which is why

he abandoned the car and fled from police on foot.             The trial court

acknowledges in its opinion that courts must view the evidence in the light

most favorable to the Commonwealth and consider all reasonable inferences

from the evidence that could support a conviction. Trial Ct. Op., 9/19/19 at


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

banc). However, the court points out that Appellee’s flight was just as likely

to have been caused by his desire to avoid the material witness warrant. The

court reasoned, “What the Commonwealth presents as reasonable inference

crosses the line separating inference from speculation.” Trial Ct. Op. at 5.

      Where the facts are not in dispute, whether a prima facie case has been

established is a question of law, and this Court’s scope of review is limited to

determining   whether    the   trial   court   committed   an   error   of   law.

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

      The Pennsylvania Supreme Court has stated:

      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.

Commonwealth v. Weigle, 997 A.2d 306, 311 (Pa. 2010) (citation omitted).

See also Pa.R.Crim.P. 542(D) (“At the preliminary hearing, the issuing

authority shall determine from the evidence presented whether there is a

prima facie case that (1) an offense has been committed and (2) the defendant

has committed it.”).

      The offense of persons not to possess firearms is defined as follows:

      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


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      manufacture or obtain a license to possess, use, control, sell,
      transfer or manufacture a firearm in this Commonwealth.

18 Pa.C.S. § 6105(a)(1). A person commits firearms not to be carried without

a license when he, inter alia, “carries a firearm in any vehicle . . . without a

valid and lawfully issued license under this chapter.” 18 Pa.C.S. § 6106(a)(1).

Finally, the offense of carrying firearms on public streets in Philadelphia

prohibits any person from carrying a firearm upon the public streets or any

public property in Philadelphia unless such person is licensed to carry a firearm

or is exempt from licensing. 18 Pa.C.S. § 6108(1)-(2). The parties stipulated

that Appellee has a prior conviction that prevents him from lawful ownership

of a firearm.

      Each of the charged gun offenses has as its key element 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.” Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa.

Super. 2018), appeal denied, 202 A.3d 42 (Pa. 2019).            To do so, “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.” Id. at 37. “[K]nowledge of the existence and location

of the contraband is a necessary prerequisite to proving the defendant’s intent

to control, and, thus, his constructive possession.” Id.

      This Court has defined constructive possession as follows:




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     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 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.

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

omitted).

     Here, we agree with the Municipal Court, which acknowledged that “this

is a close one . . . .” N.T., 1/10/19, at 16-17. However, flight from the car

could be construed as evidence of consciousness of guilt. It has long been

true in Pennsylvania that “when a person commits a crime, knows that he is

wanted therefor, and flees or conceals himself, such conduct is evidence of

consciousness of guilt and may form the basis in connection with other proof

from which guilt may be inferred.” Commonwealth v. Coyle, 203 A.2d 782,

789 (Pa. 1964). See, e.g., Commonwealth v. Hudson, 955 A.2d 1031,

1036 (Pa. Super. 2008) (“When a person knows that he is wanted in

connection with a criminal investigation, and flees or conceals himself, such

conduct is admissible as evidence of consciousness of guilt.”). Our Court has

held that evasive behavior at a car stop, where a gun is subsequently found

in the car, supports a conviction for gun possession. See Commonwealth

v. Cruz, 21 A.3d 1247, 1253 (Pa. Super.       2011) (constructive possession




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established where driver gave multiple false names to arresting officer and

gun was found in compartment of car).

      Appellee argues that his flight from the car was a mere continuation of

his earlier attempt to elude police seeking to enforce a material witness

warrant. This may be true. However, if it is, it is a credibility determination

to be made by a finder of fact upon proper presentation of evidence of fact at

trial, and not based on argument of counsel, which is not evidence. Appellee’s

presence in the vehicle, mere inches from the concealed handgun, coupled

with his flight from the automobile suffices at a preliminary hearing stage to

establish prima facie evidence of the crime charged. Indeed, flight alone at

this level is enough to infer consciousness that the gun was in the automobile

and Appellee was attempting to distance himself from the corpus of the crime.

Because the Commonwealth has met its initial low burden of establishing a

prima facie case as to the gun possession charges, we reverse the trial court.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/20




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