J-A18034-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                    Appellant               :
                                            :
                      v.                    :
                                            :
    RAHEIM JACKSON,                         :
                                            :
                    Appellee                :     No. 2515 EDA 2017

                      Appeal from the Order June 29, 2017
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003500-2017

BEFORE:      STABILE, J., STEVENS, P.J.E.* and STRASSBURGER,** J.

MEMORANDUM BY STRASSBURGER, J.:            FILED NOVEMBER 14, 2018

        The Commonwealth of Pennsylvania appeals from the June 29, 2017

order granting the motion to quash charges filed by Raheim Jackson

(Jackson). Upon review, we reverse and remand for trial.

        In late 2016, Jackson was arrested and charged with carrying a firearm

without a license, carrying a firearm in public in Philadelphia, possession of a

controlled substance, and possession of a small amount of marijuana.1         A

preliminary hearing was held on April 21, 2017.           At the hearing, the

Commonwealth offered the testimony of Sergeant Christian Duchossois and

Officer Timothy Linahan. As summarized by the trial court:




1
  At the beginning of the preliminary hearing, the Commonwealth amended
the complaint to add one count of conspiracy. The Commonwealth “specified
the firearm charges as the substantive offenses of the conspiracy.” Trial Court
Opinion, 10/3/2017, at 1. See also N.T., 4/21/2017, at 4-5.

*Former Justice specially assigned to the Superior Court.

**Retired Senior Judge assigned to the Superior Court.
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            On December 16, 2016[,] at approximately two o’clock in
     the afternoon, Sergeant Duchossois and [Officer] Linahan were
     traveling in uniform in an unmarked vehicle on the 3900 block of
     Old York Road[ in Philadelphia]. They observed a silver Chevy
     Impala make a right turn onto Old York Road behind the police
     vehicle.    Sergeant Duchossois testified that Tyreek Collier
     operated the [Chevy] and observed it [as well as a white Dodge
     Charger] traveling at a very high rate of speed weaving in and out
     of cars[, and at one point, both vehicles crossed over into the
     southbound lane while driving northbound to pass the vehicle
     Sergeant Duchossois and Officer Linahan were in]. The officers
     initiated a vehicle stop of both vehicles by activating their lights
     and sirens. [The two vehicles pulled over to the side of the road].
     As the officers exited their vehicle, the Chevy and the Dodge drove
     off[.] After circling the block, the police relocated the Chevy.
     Officer Linahan testified that they lost sight of the Chevy for
     “[m]aybe ten seconds.” Upon relocating the Chevy, Sergeant
     Duchossois testified that [the officers] observed both defendants
     leaving the [Chevy]. Sergeant [Duchossois] clarified upon cross-
     examination that “Collier [left] the driver’s side. [Jackson left] the
     passenger side.” After they exited the Chevy, both males “met
     up on the sidewalk. At that time, [Jackson] discarded a green
     backpack into a recycle bin on the sidewalk. Both [Jackson and
     Collier] began to run south into the street into the parking lane....”

            Officer Linahan testified that he observed Collier exiting the
     Chevy with a black bag and that he discarded it “in front of the
     vehicle that was parked on the highway.” He further testified that
     he did not know specifically where the black bag came from as
     Collier exited the vehicle. Upon cross-examination, Officer Linahan
     testified that Collier ran after discarding the black bag.

           Upon stopping [Jackson], Sergeant Duchossois recovered
     cash and marijuana from his person. [Sergeant Duchossois]
     recovered the black backpack in front of the parked Chevy.
     Recovered within the black backpack was a loaded firearm along
     with marijuana that matched in quantity and packaging the
     marijuana recovered from [Jackson’s] person.            Upon first
     describing the recovery location of the black backpack, Officer
     Linahan testified that “[it] wasn’t under anything. It was right in
     front [of] the vehicle. It was right in the open.” Officer Linahan
     further clarified, “[i]t was like sticking out of the front of the
     vehicle, but it wasn't covered enough to where it couldn’t be
     seen.”

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              Sergeant Duchossois also recovered a green backpack from
        the recycle bin and it contained mail in the name of “Tyreek
        Jackson” along with a prayer rug and “[n]umerous credit cards in
        names not belonging to either[” Jackson or Collier]. At the
        recovery scene, Collier identified himself as “Tyreek Jackson[.]”
        The record does not indicate whether anything was recovered
        from Collier’s person.

Trial Court Opinion, 10/3/2017, at 2-4 (record citations and some quotation

marks omitted). Following the hearing, the magisterial district judge held over

all charges for trial. N.T., 4/21/2017, at 28-29. On April 26, 2017, Jackson

filed a motion to quash.

              On June 28, 2017, the Honorable Scott DiClaudio heard
        [Jackson’s] motion to quash wherein the [trial c]ourt incorporated
        the preliminary hearing notes of testimony into the record and
        thereafter heard argument. On June 29, 2017, after holding the
        motion under advisement, t[he trial c]ourt quashed the firearms
        and conspiracy charges. The Commonwealth filed a [m]otion for
        [r]econsideration of th[e trial c]ourt’s order quashing the firearm
        and conspiracy charges. On July 13, 2017, th[e trial c]ourt
        granted the Commonwealth’s request to hold a reconsideration
        hearing.    On August 2, 2017, th[e c]ourt denied the
        Commonwealth’s reconsideration motion.

Trial Court Opinion, 10/3/2017, at 2-4. This timely-filed appeal followed.2,3




2
    Both the trial court and the Commonwealth complied with Pa.R.A.P. 1925.
3  The Commonwealth has the right to appeal the trial court’s June 29, 2017
order pursuant to Pa.R.A.P. 311(d), which provides that “[t]he Commonwealth
may take an appeal as of right from an order that does not end the entire case
where the Commonwealth certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution.” In this case, the
Commonwealth certified in its notice of appeal that the order quashing the
firearm and conspiracy charges “terminates or substantially handicaps the
prosecution.” Notice of Appeal, 8/8/2017.


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      The Commonwealth presents one issue for this Court’s review: “Did the

Commonwealth present sufficient evidence to establish a prima facie case that

[Jackson] committed the crimes of carrying a firearm without a license,

carrying a firearm in public in Philadelphia, and conspiracy?” Commonwealth’s

Brief at 2.

      We consider the Commonwealth’s issue mindful of the following.

      [I]t is 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.
      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. … To properly
      dispose of this appeal, we must proceed to examine the merits of
      the underlying substantive issues under the correct standard—
      i.e., we will engage in plenary review of both claims as questions
      of law.

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

omitted).

      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, but rather, its burden is merely to put forth a
      prima facie case of the defendant’s guilt. A prima facie case exists
      when the Commonwealth produces evidence of each of the
      material elements of the crime charged and establishes sufficient
      probable cause to warrant the belief that the accused committed
      the offense. 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 go to the jury. Moreover, [i]nferences
      reasonably drawn from the evidence of record which would
      support a verdict of guilty are to be given effect, and the evidence
      must be read in the light most favorable to the Commonwealth’s
      case.




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Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003) (citations and

quotation marks omitted).

      In this case, the trial court held that the Commonwealth did not provide

sufficient evidence to establish a prima facie case for the firearm and

conspiracy charges because the Commonwealth did not prove that Jackson

had possession of the firearm found in the backpack.       Trial Court Opinion,

10/3/2017, at 6.

      Because Jackson was not found with the firearm on his person, the

Commonwealth was required to           present evidence    that Jackson had

constructive possession of the firearm. Commonwealth v. Kirkland, 831

A.2d 607, 611 (Pa. Super. 2003). “Constructive possession is an inference

arising from a set of facts that possession of the contraband was more likely

than not.”   Commonwealth v. Jackson, 659 A.2d 549, 551 (Pa. 1995)

(quoting Commonwealth v. Mudrick, 507 A.2d 1212, 1213 (Pa. 1986)).

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

citations omitted).   “To find constructive possession, the power and intent to



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control the contraband does not need to be exclusive to the defendant. Our

Supreme Court has recognized that constructive possession may be found in

one or more actors where the item [at] issue is in an area of joint control and

equal access.”   Commonwealth v. Vargas, 108 A.3d 858, 868 (Pa. Super.

2014) (internal quotation marks omitted).

      The trial court found that the “Commonwealth failed to show [that it

was] more likely than not that [Jackson] had knowledge of the firearm and as

a result, there was insufficient evidence to prove that [Jackson] had the power

to control the firearm, a prerequisite to a finding of constructive possession.”

Trial Court Opinion, 10/3/2017, at 6. Specifically, the trial court found the

Commonwealth did not elicit testimony establishing: (1) where Jackson was

seated in the vehicle; (2) Jackson’s “vantage point, if any, of the black

backpack while inside the vehicle, and (3) whether Jackson “knew the black

backpack contained the gun.” Id. at 7.

      The court found Jackson’s flight after abandoning the vehicle to be

“more indicative of his consciousness of guilt relating to the marijuana

recovered from his person and the credit cards belonging to other persons

recovered from the green backpack that [Jackson] discarded[,]” and held that

the evidence “directly refute[d] the Commonwealth’s contention that

[Jackson] and Collier exited the vehicle in a ‘hurry’ causing them to mistakenly

grab each other’s backpack.”      Id. at 7-8 (emphasis in original omitted).

Further, although the court acknowledged “the marijuana recovered from the



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black backpack matched the marijuana found on [Jackson’s] person,” it opined

that this did not prove that Jackson knew what was in the black backpack, and

instead “may lend an inference that [Jackson] and Collier had purchased

marijuana from the same source.” Id. at 7.

      The trial court also concluded that, because there was insufficient

evidence to establish Jackson had knowledge of the firearm, he was

“incapable” of exercising control over it. Id. at 9. Finding the Commonwealth

failed to submit sufficient evidence to prove that Jackson constructively

possessed the firearm, “it logically follows that [Jackson] and Collier did not

have joint constructive possession of the firearm.” Id. at 10-14. In sum, the

trial court found there was “insufficient evidence, even at a prima facie level,

to show that [Jackson] constructively possessed the firearm.” Id. at 15. For

these reasons, the trial court submitted that it properly quashed the firearm

and conspiracy charges.

      The evidence in the record before [the trial court did] not permit
      a reasonable inference that [Jackson] had the power to control or
      knew about the firearm.          Furthermore, th[e trial c]ourt
      conclude[d] that there is not a scintilla of evidence that [Jackson]
      intended to control the firearm as Collier exerted affirmative steps
      to demonstrate his exclusive control over the gun. Furthermore,
      th[e the trial court found] that the Commonwealth also failed to
      show sufficient prima facie evidence that [Jackson] conspired with
      Collier to possess the firearm.

Id.

      Viewing this case in the light most favorable to the Commonwealth, the

evidence established that Jackson and his cohort Collier were observed exiting



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a vehicle, each discarding a backpack as they began their flight from police.

N.T., 4/21/2017, at 9-10. Once apprehended, Jackson was subjected to a

search of his person, and Sergeant Duchossois recovered cash and marijuana.

Id. at 12-13. The marijuana recovered from Jackson’s person matched the

quantity and packaging of the marijuana recovered from the black backpack,

which also contained the firearm at issue. Id. at 13-14.

      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
      use of inferences is a process of reasoning by which a fact or
      proposition sought to be established is deduced as the logical
      consequence from the existence of other facts that have been
      established. An inference is no more than a logical tool enabling
      the trier of fact to proceed from one fact to another, if the trier
      believes that the weight of the evidence and the experiential
      accuracy of the inference warrant so doing. Evidentiary inferences
      are constitutionally infirm unless the inferred fact is more likely
      than not to flow from the proved fact on which it is made to
      depend.

Commonwealth v. Williams, 911 A.2d 548, 552 (Pa. Super. 2006) (internal

citations and quotation marks omitted).

      Drawing all reasonable inferences from these facts, Jackson’s presence

in the vehicle with the backpack, his flight from police, and the marijuana

recovered from his person that matched the marijuana in the backpack with

the firearm, provided circumstantial evidence to allow the court to infer that:

(1) the black backpack containing the firearm and identically packaged

marijuana was Jackson’s backpack such that Jackson may have had

knowledge of the contents of the backpack; and (2) Jackson, who was in the

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Chevy with Collier and the backpack, had the ability to possess and control

the backpack. The former inference is bolstered by the fact that the green

backpack the officers observed Jackson discard contained mail addressed to

“Tyreek Jackson,” the same name Collier provided to police. Id. at 15.

      Based on the totality of the circumstances, it is reasonable to infer that

Jackson had joint constructive possession of the firearm. While this evidence

may not be sufficient to sustain a conviction, that is not the burden that the

Commonwealth must overcome at this juncture.4

      In light of the foregoing, we find a prima facie case exists for carrying a

firearm without a license, carrying a firearm in public in Philadelphia, and

conspiracy.

      Order reversed. Case remanded for trial. Jurisdiction relinquished.




4 Furthermore, we agree with the Commonwealth that the court’s conclusion
that Jackson and Collier could have purchased the marijuana from the same
source or that Jackson’s flight was more indicative of his consciousness of guilt
for having marijuana on his person, “departs from the proper standard of
review.” Commonwealth’s Brief at 15. See Commonwealth v. Landis, 48
A.3d 432, 448 (Pa. Super. 2012) (finding “the trial court improperly weighed
the evidence and failed to properly view the evidence in the light most
favorable to the Commonwealth” when it concluded that Landis “only intended
to frighten, as opposed to inflict bodily injury” when discharging a firearm,
placing great emphasis on where the bullet landed in relation to the police
officers).


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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 11/14/18




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