J-S41010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

MICHAEL MILLER,

                            Appellee                     No. 2767 EDA 2014


                 Appeal from the Order Entered August 20, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004869-2014


BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED JULY 13, 2016

        The Commonwealth, as the appellant, appeals from the trial court’s

August 20, 2014 order granting Michael Miller’s motion to quash the charges

of possession with intent to deliver a controlled substance (PWID),

possession of a controlled substance, and criminal conspiracy. After careful

review, we vacate the court’s order and remand for trial.

        Miller was charged with the above-stated crimes after the vehicle he

was driving, with his wife as a passenger, was stopped by police officers and

heroin was discovered inside.             Miller and his wife, as co-defendants,

proceeded to a preliminary hearing on April 25, 2014, after which both

defendants were held for trial on all charges.          Thereafter, Miller filed a

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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pretrial motion to quash the charges pending against him, and a hearing on

that motion was conducted on August 20, 2014. At the conclusion thereof,

the trial court granted Miller’s motion to quash.

      The Commonwealth filed a timely notice of appeal.           It also filed a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,

despite that the trial court did not order the filing of such a statement. No

Rule 1925(a) opinion was issued by the court, however, as the judge who

presided over the August 20, 2014 hearing was no longer on the bench in

Philadelphia County. On appeal, the Commonwealth presents one question

for our review: “Did the lower court err in ruling that the evidence was

insufficient for a prima facie case?” Commonwealth’s Brief at 4.

      Preliminarily, we note that Miller’s motion to quash was “the equivalent

in   Philadelphia   practice   of   a   pre-trial   writ   of   habeas   corpus.”

Commonwealth v. Dantzler, 135 A.3d 1109, 1111 (Pa. Super. 2016).

This Court recently clarified the appropriate standard of reviewing a court’s

decision to grant a pre-trial habeas motion, stating:

            We review a decision to grant a pre-trial petition for a writ
      of habeas corpus by examining the evidence and reasonable
      inferences derived therefrom in a light most favorable to the
      Commonwealth. Commonwealth v. James, 863 A.2d 1179,
      1182 (Pa. Super. 2004) (en banc). In Commonwealth v.
      Karetny, 583 Pa. 514, 880 A.2d 505 (2005), our Supreme Court
      found that this Court erred in applying an abuse of discretion
      standard in considering a pre-trial habeas matter to determine
      whether the Commonwealth had provided prima facie evidence.
      The Karetny Court opined, “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.” Id. at 513, 880 A.2d 505;


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      see also Commonwealth v. Huggins, 575 Pa. 395, 836 A.2d
      862, 865 (2003) (“The question of the evidentiary sufficiency of
      the Commonwealth's prima facie case is one of law[.]”). The
      High Court in Karetny continued, “[i]ndeed, 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.” Karetny, supra at 513, 880 A.2d
      505. Hence, we are not bound by the legal determinations of
      the trial court. To the extent prior cases from this Court have
      set forth that we evaluate the decision to grant a pre-trial
      habeas corpus motion under an abuse of discretion standard, our
      Supreme Court has rejected that view. See id.

Id. at 1111-12.

      This Court in Dantzler also explained:

            A pre-trial habeas corpus motion is the proper means for
      testing whether the Commonwealth has sufficient evidence to
      establish a prima facie case. To demonstrate that a prima facie
      case exists, the Commonwealth must produce evidence of every
      material element of the charged offense(s) as well as the
      defendant's complicity therein. To meet its burden, the
      Commonwealth may utilize the evidence presented at the
      preliminary hearing and also may submit additional proof.

Id. at 1112 (internal citations omitted).

      In this case, the Commonwealth presented the following evidence at

the preliminary hearing. Officer Fred Repetsky testified that on March 15,

2014, he and his partner conducted a traffic stop of a white Cadillac based

on the vehicle’s “brake light being out….”        N.T. Preliminary Hearing,

4/25/14, at 5. The officer and his partner approached the vehicle and spoke

to Miller, who was sitting in the driver’s seat, and a woman, later determined

to be Miller’s wife, who was sitting in the passenger seat.      Id.   Officer

Repetsky stated that he asked Miller’s wife from where the two were coming,



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while his partner asked the same of Miller.      Id.   Miller and his wife gave

different answers. Id. The officers then asked the two “where they were

headed.” Id. Officer Repetsky stated that Miller and his wife “appeared to

be looking at each other, trying to gauge answers and build answers off of

each other. At that point [the officers] decided to separate them.” Id.

      Miller was removed from the vehicle and “placed in the patrol car.”

Id. at 5-6.     Officer Repetesky stated that as he was walking Miller to the

patrol car, “[he] asked [Miller] if there were any guns, knifes [sic], hand

grenades [or] any weapons, anything [the officers] needed to know about in

the vehicle.”    Id. at 6.   The officer testified that Miller stated there were

needles in the car, at which point Officer Repetsky relayed that information

to his partner.     Id.   Officer Repetsky stated that his partner then asked

Miller’s wife if there was anything dangerous in the vehicle and, according to

Officer Repetsky,

      [a]t that time, [Miller’s wife] reached down in between her legs
      and removed a cellophane packet and placed it on the dash
      board. In that cellophane packet was clear[] blue glassine
      inserts, which are consistent with packaged heroin sold in the
      area.

            There was a large amount. It was approximately a four
      inch by three inch block. She placed it on the dashboard. She
      did that as I was coming up from the rear of the car. My partner
      alerted me to the narcotics that she placed on the dashboard. At
      that point I asked the female was there anything else that we
      needed to know about in the vehicle that could hurt us. She
      reached down again in between her legs from the floorboard and
      placed a second rack of heroin on the dashboard. It was about
      the same size, about four by three, but it was twice as thick.



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Id. at 6-7.

      On cross-examination, Officer Repetsky was asked more specifically

about where the drugs were located in the vehicle, and the officer replied

that Miller’s wife’s “open purse was on the floorboard of the vehicle” and it

“appeared to [him]” that the wife took the heroin out of her purse. Id. at

12. However, the officer stated that “[w]here she reached down, [he] could

not see exactly where her hand was[] [because] her leg was in the way[,]”

but he did observe that “her purse was in between her legs on the floor of

the vehicle. Id. After observing the narcotics, the officers placed Miller and

his wife under arrest and “held the vehicle for a search warrant.” Id. at 7,

13.

      Officer Andrew Schafer also took the stand at the preliminary hearing

and testified that he executed the search warrant on Miller’s vehicle and

found two cell phones and $1,067 in a wallet belonging to Miller. Id. at 17.

Officer Schafer also testified that the “two racks of heroin” seized from the

vehicle contained a total of 60 bundles, broken down into 800 packets. Id.

at 18.   The parties then stipulated that if called to the stand, “an expert …

would testify that those drugs were possessed with the intent to deliver.”

Id. at 20.

      At the habeas hearing on August 20, 2014, the Commonwealth again

called Officer Repetesky to the stand. During that proceeding, he testified

that Miller’s wife “made a lot of statements” to him during the course of the

traffic stop. N.T. Hearing, 8/20/14, at 9. Notably, Officer Repetsky testified

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that Miller’s wife “stated that [Miller] and her [sic] had made this, what she

referred to as a run, only a few times together. She stated that [Miller] had

made [t]his run numerous times over the previous several months.”         Id.

Officer Repetsky stated that he interpreted the wife’s reference to a ‘run’ to

mean “[a] drug pickup and delivery.”      Id. at 9.   On cross-examination,

Miller’s counsel questioned Officer Repetsky about why he did not testify at

the preliminary hearing that Miller’s wife made statements in this regard, to

which Officer Repetsky replied, “I wasn’t asked.” Id. at 10. At the close of

the habeas proceeding, the court granted Miller’s motion to quash all

charges pending against him.      When asked to provide a reason for its

decision, the court stated, “I didn’t believe [Officer Repetsky].” Id. at 16.

The Commonwealth argued that “credibility is not an issue[,]” the court

responded, “[c]redibility is always an issue. … No way with that testimony.”

Id. at 16.

      The Commonwealth now argues on appeal that the court’s decision to

grant Miller’s habeas motion was erroneously premised on a credibility

determination. It further avers that considering the totality of the evidence,

including Officer Repetsky’s testimony, there was ample proof to constitute a

prima facie case of PWID, possession of a controlled substance, and

conspiracy.

      In response, Miller concedes that the court made a credibility

determination, but argues that it was not error to do so because Officer

Repetsky’s testimony was so implausible and inherently unreliable that it

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could not possibly have met “the level of even a prima facie case.” Miller’s

Brief at 12-13. Alternatively, he contends that even considering the officer’s

testimony,    the    evidence   was   inadequate   to   demonstrate   that   he

constructively possessed the heroin, or that he conspired with his wife to

commit PWID.

      We disagree with both of Miller’s arguments. First, Officer Repetsky’s

testimony was not “in conflict with the incontrovertible physical facts[,]” or

so “contrary to human experience and laws of nature,” such that a fact-

finder would be required to reject that testimony.        Commonwealth v.

Santana, 333 A.2d 876, 878 (Pa. 1975).        Moreover, the record does not

support Miller’s assertion that the trial court “made a de facto finding that

the testimony was so incredible as to be inherently unreliable, and that a

verdict based upon it must amount to no more than surmise or conjecture.”

Miller’s Brief at 17. Rather, the court simply stated that it did not believe

the officer, which was an impermissible credibility determination at that

stage of the proceedings. See Commonwealth v. Wojdak, 466 A.2d 991,

997 (Pa. 1983) (stating that “weight and credibility of the evidence are not

factors” to be considered at a habeas hearing); Commonwealth v. Kohlie,

811 A.2d 1010, 1014 (Pa. Super. 2002) (stating that the trial court erred at

the habeas hearing when it made a credibility determination regarding the

Commonwealth’s evidence, “because credibility is not an issue at pretrial

proceedings”).      Therefore, we agree with the Commonwealth that the trial




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court erred by basing its decision to grant Miller’s motion to quash on its

conclusion that Officer Repetsky’s testimony was not credible.

      Additionally, we agree with the Commonwealth that considering the

officer’s testimony, along with the totality of the other evidence presented at

the preliminary hearing and habeas proceeding, there was sufficient proof to

constitute a prima facie case against Miller.          First, for Miller’s charges of

possession of a controlled substance and PWID, the Commonwealth was

required to present evidence that Miller constructively possessed the heroin.

See Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996)

(“When      contraband   is   not   found   on   the     defendant’s   person,   the

Commonwealth must establish constructive possession….”).

      Constructive possession is the ability to exercise conscious
      control or dominion over the illegal substance and the intent to
      exercise that control. [T]wo actors may have joint control and
      equal access and thus both may constructively possess the
      contraband. The intent to exercise conscious dominion can be
      inferred from the totality of the circumstances.

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa. Super. 2005) (internal

citations and quotation marks omitted).

      In addition, for the crime of PWID, the Commonwealth was required to

proffer evidence that Miller intended to sell the heroin.              Id. (citations

omitted).

         The trier of fact may infer that the defendant intended to
         deliver a controlled substance from an examination of the
         facts and circumstances surrounding the case. Factors to
         consider in determining whether the drugs were possessed
         with the intent to deliver include the particular method of


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         packaging, the form of the drug, and the behavior of the
         defendant.

      Thus, possession with intent to deliver can be inferred from the
      quantity of the drugs possessed and other surrounding
      circumstances, such as lack of paraphernalia for consumption.

Id. (citations omitted).

      Finally,

      [t]o sustain a conviction for criminal conspiracy:

         [T]he Commonwealth must establish that the defendant
         (1) entered into an agreement to commit or aid in an
         unlawful act with another person or persons, (2) with a
         shared criminal intent and (3) an overt act was done in
         furtherance of the conspiracy.

      Circumstantial evidence may provide proof of the conspiracy.
      The conduct of the parties and the circumstances surrounding
      such conduct may create a web of evidence linking the accused
      to the alleged conspiracy beyond a reasonable doubt.

         An agreement can be inferred from a variety of
         circumstances including, but not limited to, the relation
         between the parties, knowledge of and participation in the
         crime, and the circumstances and conduct of the parties
         surrounding the criminal episode. These factors may
         coalesce to establish a conspiratorial agreement beyond a
         reasonable doubt where one factor alone might fail.

Id. at 121-22 (internal citations and quotation marks omitted).

      Viewing the above-stated evidence, and all reasonable inferences

derived therefrom, in a light most favorable to the Commonwealth

demonstrates a prima facie case for possession of a controlled substance,

PWID, and conspiracy.      Miller’s driving the vehicle, his relationship to his

wife, her statements about their previous drug ‘runs,’ the cash found in

Miller’s wallet, and the substantial amount of heroin discovered in the vehicle


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was adequate, prima facie proof that Miller constructively possessed the

heroin, intended to sell it, and conspired with his wife to do so. Accordingly,

the trial court erred by granting Miller’s motion to quash the charges against

him,   where   that   decision   was   premised   on   an   improper   credibility

determination, and the Commonwealth’s evidence was sufficient to prove a

prima facie case against Miller. Thus, we vacate the court’s August 20, 2014

order and remand for trial.

       Order vacated. Case remanded for trial. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2016




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