J-S62024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

BYDIA EVANS,

                            Appellee                 No. 2453 EDA 2013


                  Appeal from the Order Entered July 25, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006939-2013


BEFORE: ALLEN, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                        FILED NOVEMBER 06, 2014

       Appellant, the Commonwealth of Pennsylvania (the Commonwealth)

appeals from the order entered on July 25, 2013, granting a motion to quash

charges filed against Appellee, Bydia Evans. In granting relief, the trial court

determined that the Commonwealth did not establish a prima facie case

against Appellee and, therefore, dismissed charges of possession of a

controlled substance with intent to deliver (PWID), knowing or intentional

possession of a controlled substance, possession of a firearm with an altered

manufacturer’s number, possession of an instrument of crime (PIC), and

conspiracy.1 Upon careful consideration, we vacate the order, reinstate the

criminal charges, and remand for trial.
____________________________________________


1
  35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), 18 Pa.C.S.A.
§ 6110.2, 18 Pa.C.S.A. § 907, and 18 Pa.C.S.A. § 903, respectively.
J-S62024-14



        The trial court summarized the facts and procedural history of this

case as follows:

              On April 4, 2013, at 11[:00] a[.]m[.], Philadelphia Police
          Officer Dunkley and his partner, Officer Burton,[2] received a
          call for a burglary at 5644 Windale Avenue in Philadelphia.
          When the officers arrived at 5644 Windale Avenue, they
          heard an audible alarm and observed that the rear door of
          the home was open. There was no one on location. Officer
          Dunkley and his partner walked up to the door, announced
          themselves as police officers, and, when no one responded,
          proceeded to enter the home. While inside the home the
          officers searched the basement, and observed a light in the
          washroom area. Near the light they observed a small plant,
          small seeds, possible marijuana residue, and loose bullets.

              Officer Bundy and his partner, Officer Baxter, arrived on
          the scene around 12:30 p.m. to secure the property. While
          securing the rear of the property, Officer Bundy observed
          [co-defendant, Lamar] Patterson [(Patterson)] approaching
          the property in a white Chevrolet. Officer Bundy informed
          [] Patterson that he and his partner were securing the open
          property and waiting for the owner to return. [] Patterson
          informed the police that he could go get his brother,
          [Appellee], who [] Patterson claimed was the owner of the
          home, and return with him in 15 minutes. [Appellee]
          arrived on the scene, in the passenger seat of the car []
          Patterson was driving, approximately 20 minutes later.
          When [] Patterson drove up to the scene, Officers Bundy
          and Baxter noticed a strong marijuana odor emanating from
          the vehicle.     The officers ordered [Appellee] and []
          Patterson out of the car and placed them under arrest. The
          record does not reflect whether the car was registered to
          either [Appellee] or [] Patterson.        The officers then
          observed a black and white Nike bag containing clear plastic
          bags of marijuana in the vehicle. [A later search revealed
          that the bag contained three sandwich baggies containing
          marijuana weighing 7.7 grams, 17.2 grams, and 14.5
____________________________________________


2
    None of the investigating officers’ first names were identified on the record.



                                           -2-
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          grams, respectively.]     After arresting [Appellee] and []
          Patterson, the police searched the home. Upon searching
          the home the police […] recovered three letters in
          [Appellee’s] name [and addressed to Appellee at the
          Windale address] in the basement closet[.] [In the same
          closet, police recovered two sandwich baggies of marijuana
          – one containing 7.3 grams and the other containing 28.5
          grams, two freezer bags of marijuana – one containing
          454.4 grams and the containing 35.6 grams, as well as, a
          black .357 Magnum Ruger with an obliterated serial number
          and a silver Smith and Wesson .38 caliber firearm. Police
          also recovered three small marijuana plants and a digital
          scale with marijuana residue on it from the basement.]

              On April 4, 2013, [Appellee] was arrested and charged
          with [the aforementioned charges].

              On May 28, 2013, the Philadelphia Municipal Court had a
          preliminary hearing and all charges were held for [trial].

              On [June 10, 2013], [Appellee] filed a motion to quash
          [] all charges. At a hearing held on [July 25, 2013], [the
          trial court] granted the motion to quash [] all five of the
          charges.

             On August 22, 2013, the Commonwealth filed a notice of
          appeal, as well as a [Pa.R.A.P.] 1925(b) statement of errors
          complained of on appeal[.]       [The trial court issued an
          opinion pursuant to Pa.R.A.P. 1925(a) on November 26,
          2013.]

Trial Court Opinion, 11/26/2013, at 1-2 (record citations, superfluous

capitalization, and headings omitted).

     On appeal, the Commonwealth presents the following issue for our

review:

          Properly viewed in the light most favorable to the
          Commonwealth, did the evidence at the preliminary hearing
          establish a prima facie case of [PWID], knowing or
          intentional possession of a controlled substance, possession



                                     -3-
J-S62024-14


        of a firearm with altered manufacturer’s number, [PIC], and
        conspiracy?

Commonwealth’s Brief at 4.

     The Commonwealth asserts “the evidence at the preliminary hearing,

and the reasonable inferences arising therefrom, permitted a finding of a

prima facie case that [Appellee] had constructive possession of the drugs

and the gun[s] and conspired with his brother [to commit the offenses with

which he was charged and, therefore,] the lower court abused its discretion

by quashing the charges.”    Id. at 10.      The Commonwealth argues that it

submitted evidence that Appellee was in constructive possession of the

contraband found in the basement closet at 5644 Windale Avenue, because

there were “multiple letters addressed to” Appellee “found in the same closet

as the gun with the altered manufacturer’s number and several bags of

marijuana.” Id. at 13. The Commonwealth also asserts that it presented

evidence that Appellee had dominion and control over the residence

because: (1) co-defendant “Patterson told police that [Appellee] owned the

home[,]” and; (2) Appellee’s official criminal court file listed 5644 Windale

Avenue as his address. Id. at 14.

     The   Commonwealth      further    argues   that   it   “produced   sufficient

evidence that [Appellee] constructively possessed the marijuana in the

car[,]” because: (1) Appellee was in the car and had access and control of

the found narcotics; (2) “the fact that there was a strong odor of marijuana

inside the car and the fact that the drugs were in plain view indicate

[Appellee] was aware of the drugs[,]” and; (3) large quantities of marijuana

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J-S62024-14



found    inside   Appellee’s   residence   indicates   he   was   involved   in   the

distribution of marijuana. Id. at 15. The Commonwealth distinguishes the

cases the trial court relied upon in granting relief, noting that those cases

“addressed the sufficiency of the evidence to support a conviction, not the

sufficiency of the evidence to establish a prima facie case.” Id. at 16.

        Finally, with regard to the conspiracy charge, the Commonwealth

asserts that “Patterson and [Appellee] were brothers[, ...] they were in the

car together, and had constructive possession of the drugs inside the car.”

Id. at 18.

        Our standard of review is well-settled:

                The question of the evidentiary sufficiency of the
          Commonwealth's prima facie case is one of law as to which
          this Court's review is plenary.

                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, inferences 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.

Commonwealth v. Nieves, 876 A.2d 423, 424 (Pa. Super. 2005).




                                       -5-
J-S62024-14



       Hearsay     testimony       is    permissible   at   a   preliminary   hearing.

Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa. Super. 1991) (citation

omitted). “[T]here is no need for an affirmative showing of witness

unavailability or unreliability in order to allow hearsay testimony at a

preliminary hearing.”        Id.        Moreover, “credibility is not an issue at a

preliminary hearing.”       Id.    However, “our Supreme Court [has] held that

where, at a preliminary hearing, the Commonwealth presents only hearsay

testimony regarding a victim's account of an alleged criminal incident, there

is insufficient evidence to establish a prima facie case.” Nieves, 876 A.2d

at 425, citing Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d

172 (Pa. 1990) (plurality); compare Tyler, 587 A.2d at 328 (noting that no

error occurred at the preliminary hearing because evidence in addition to

hearsay evidence was presented).

       Appellant was charged with four possessory crimes.3               First, PWID

statutorily prohibits:

         the manufacture, delivery, or possession with intent to
         manufacture or deliver, a controlled substance by a 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).

____________________________________________


3
   We will examine the conspiracy charge after reviewing the possessory
offenses.



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     The crime of knowing or intentional possession of a controlled

substance prohibits:

        [k]nowingly 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[.]

35 P.S. § 780-113(a)(16).

     The statute setting forth the crime of possession of a firearm with

altered manufacturer's number provides that:

        No person shall possess a firearm which has had the
        manufacturer's number integral to the frame or receiver
        altered, changed, removed or obliterated.

18 Pa.C.S.A. § 6110.2.

     Finally, the Commonwealth charged Appellee with PIC.         “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.

Instruments of crime include “[a]nything used for criminal purposes and

possessed by the actor under circumstances not manifestly appropriate for

lawful uses it may have” which “includes a firearm which is not loaded or

lacks a clip or other component to render it immediately operable, and

components which can readily be assembled into a weapon.” Id.

     Regarding possession, a person may have actual or constructive

possession of contraband. Constructive possession is defined as follows:




                                   -7-
J-S62024-14


        [c]onstructive 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. Muniz, 5 A.3d 345, 348-349 (Pa. Super. 2010) (citation

omitted).   “Additionally, it is possible for two people to have joint

constructive possession of an item of contraband.”         Commonwealth v.

Hopkins, 67 A.3d 817, 820-821 (Pa. Super. 2013) (citation omitted).

      Police recovered evidence in this case from 5644 Windale Avenue and

the vehicle in which Appellee was a passenger.         We will examine the

recovery areas separately.     First, with regard to the residence, at the

preliminary hearing, the Commonwealth presented the testimony of Officer

Bundy. Officer Bundy testified that he reported to 5644 Windale Avenue to

secure the property after a potential burglary. N.T., 5/28/2013, at 17. Co-

defendant, Patterson, arrived at the property and told Officer Bundy “that he

could go get the owner, who is his brother” and “[a]bout 20 minutes later he

arrived [with Appellee].” Id. at 17-18. When asked if Officer Bundy spoke

with the owner of property at 5644 Windale, he responded: “I don’t know

who the owner is. All I know is that [Appellee] lives at the property. I don’t

know if he owned the property or not.”        Id. at 34.    All of the parties

stipulated that Officer Barber, who later recovered contraband from the

residence following Appellee’s and Patterson’s arrest, would have testified



                                    -8-
J-S62024-14



that “there was no indicia of residency of any kind relating to [] Patterson

taken from that property.” Id. at 42. The parties also stipulated that, in a

basement closet at the subject residence, police recovered “letters in the

name of [Appellee] addressed to 5644 Windale Avenue and this was in the

same closet in which [] two handguns and some narcotics were recovered.”

Id. at 44-45. The serial numbers were obliterated on one of the firearms.

Id. at 44. Police also recovered a digital scale with marijuana residue from

the residence.   Id. at 47.   The Commonwealth presented an expert who

opined that all of the narcotics found “were possessed with the intent to

distribute and not for personal use” “based upon the amount and way they

were packaged.” Id. at 50. At the conclusion of the preliminary hearing,

the Commonwealth “mark[ed] and move[d] the Quarter Sessions file [into

the record] for [Appellee] showing an address of 5644 Windale Avenue[.]”

Id. at 55.

      Here, the trial court determined:

            In the instant case, the Commonwealth failed to
        demonstrate that [Appellee] had the knowledge, intent, or
        the ability to control the contents of the home or the
        vehicle.   At the motions hearing, the Commonwealth
        asserted that it had made a prima facie showing of
        constructive possession of the drugs found inside the home
        by showing that [Appellee] resided at the house in question.
        No such showing was made. [Appellee] at all times was
        only observed outside of the home. Additionally, the door
        of the home was left opened and the area was unsecured
        before the officers arrived on the scene. Further, police
        stated that [Appellee] was taken into custody immediately
        when he arrived on scene, without confirmation of his
        residence.    The Commonwealth’s primary evidence of

                                    -9-
J-S62024-14


        residency is the three letters found in the basement closet.
        The Commonwealth also relies on [] Patterson’s
        unsubstantiated statements that [Appellee] was the owner
        of the home. These observations and statements, without
        more, are insufficient to show that [Appellee] resided in the
        home, and thus constructively possessed the drugs inside.
        Moreover, even if the Commonwealth had provided
        sufficient evidence of residency, mere residency does not
        establish knowledge of contraband in a home; nothing
        presented at the preliminary hearing suggests that, if
        [Appellee] does reside in the home, he is the sole resident
        and thus the only person who could possibly be responsible
        for     whatever       contraband     is     found     inside.
        Com[monwealth] v. Fortune, 318 A.2d [] 327, 329
        ([Pa.] 1974)(“There is no evidence that the appellant had
        any knowledge of the presence of drugs in her home prior
        to the arrival of the police. The appellant’s residency in the
        home does not establish any such knowledge.”). Thus the
        Commonwealth failed to make out a prima facie case of
        constructive possession, and the charges were properly
        quashed.

Trial Court Opinion, 11/26/2013, at 6-7. We disagree.

     Initially, we note the trial court’s reliance on Fortune was flawed. In

Fortune, while effectuating a search warrant, police entered a residence

with multiple people inside. Police found packets of narcotics on the ground

in a hallway off the first-floor kitchen. Three men and one woman were in

the living room on the same floor. Fortune, “who was wearing a robe, came

downstairs, went through the living room and entered the kitchen where the

arresting officer was picking up the packets from the floor.” Fortune, 318

A.2d at 328. No drugs were found on her person. Fortune “was arrested

after the police found letters addressed to her at the address being searched

and concluded that she was the residen[t] of the premises.”              Id.   In




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determining that there was insufficient evidence to convict Fortune of

possession of the narcotics,4 our Supreme Court concluded:

               When the crime charged is the illegal possession of
         narcotic drugs, the presence of a person at the scene,
         without a consideration of the totality of the circumstances,
         does not prove the crime.

                In this case, no narcotic drugs were found on the
         person of [Fortune]. None were found anywhere else on the
         premises. Those that were found were not in a place
         normally accessible only to a resident of a home. The drugs
         were found in plain view, strewn on the kitchen floor. Four
         persons were on the first floor and had more immediate
         access to the kitchen than did [Fortune] who was upstairs
         when the police broke in ‘within seconds' after their arrival.
         There is no evidence that [Fortune] had any knowledge of
         the presence of the drugs in her home prior to the arrival of
         the police. [Fortune]'s residency in the home does not
         establish any such knowledge. We cannot assume that a
         resident of a home, where guests are present, knows of the
         full contents of the premises.

Id. at 329.       As the Court made clear, possession must be viewed in

consideration of the totality of the circumstances.

       In Fortune, the narcotics could have been attributed to anyone

located in the house at the time of the search and there was no proof that

Fortune knew there were drugs on the premises.            After Fortune was

decided, the Commonwealth Court issued an opinion in Manely v.


____________________________________________


4
       We note that Fortune was appealing her conviction based upon
insufficient evidence to support possession of narcotics beyond a reasonable
doubt. Whereas, in this case, the Commonwealth has a lesser burden in
establishing a prima facie case.



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Fitzgerald, 997 A.2d 1235 (Pa. Cmwlth. 2010) 5 which examined the history

of constructive possession to conclude that “[i]n every case examined since

[] 1983, a defendant who lived in the dwelling where the drugs were found

and had equal access to the specific places were the drugs were located was

found to have constructively possessed them, irrespective of how many

other people also had access to the drugs or if the drugs were hidden.”

Manely, 997 A.2d at 1240 (emphasis in original). Under Manley, and the

Superior    Court     decisions    discussed       therein,   we   conclude   that   the

Commonwealth adduced sufficient evidence to establish a prima facie case of

constructive possession against Appellee with respect to the drugs and

firearms located in the house.

       Moreover, the case sub judice has similar facts to our decision in

Commonwealth v. Bruner, 564 A.2d 1277 (Pa. Super. 1989). In Bruner,

this Court found sufficient evidence to support Bruner’s narcotics convictions

beyond a reasonable doubt, a more demanding standard than setting forth a

prima facie case.       In that case, police executing a search warrant found

narcotics in a first floor bedroom of the subject residence.             After Brunner

was arrested, he denied living in that particular bedroom. In reviewing the
____________________________________________


5
  While decisions of the Commonwealth Court are not binding upon this
Court, we may elect to follow the Commonwealth Court decisions if we find
the rationale persuasive.   Beaston v. Ebersole, 986 A.2d 876, 881 (Pa.
Super. 2009). In rendering its decision in Manely, the Commonwealth
Court primarily examined Superior Court decisions. Thus, we find Manely
persuasive.



                                          - 12 -
J-S62024-14



evidence to conclude it was sufficient to support Bruner’s narcotics

convictions this Court opined:

        We agree with the lower court that the evidence established
        [Bruner’s] constructive possession of the contents of the
        first floor apartment. As the lower court pointed out, the
        search of that apartment yielded two postal customer
        receipts containing [Bruner’s] name, various envelopes
        addressed to [Bruner] at that address, a traffic citation
        made out to [Bruner], and a civil complaint listing [Bruner]
        as plaintiff at the address at which the evidence was
        recovered. In addition, testimony was offered by the victim
        of the assault that [Bruner] lived at the residence in issue
        and that he (the victim) had met with [Bruner] there on
        several occasions. This evidence was sufficient to establish
        [Bruner’s] constructive possession under section 780–113.

Bruner, 564 A.2d at 1285.

     Here, the trial court’s rationale for rejecting a prima facie case of

constructive possession turns logic on its head. The trial court reasoned, in

part, that Appellee was only observed outside of the Windale residence and

that police took Appellee into custody without confirming his residence. The

record, however, shows that Appellee received mail and listed Windale as his

address as shown in the quarter session files. More troubling, however, is

the trial court’s observation that the door of the home was open and the

area unsecured before police arrived.       By this, the trial court seems to

suggest that some unidentified person or persons broke into the Windale

house and stashed guns and drugs inside the residence.       Our standard of

review requires that we view the facts in the light most favorable to the

Commonwealth, which the trial court clearly has not done.



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J-S62024-14



      Viewing the totality of the evidence of this case in the light most

favorable to the Commonwealth, we find there was sufficient evidence to

support a prima facie case regarding the offenses lodged against Appellee in

relation   to   the    contraband   recovered     from     the    residence.        The

Commonwealth presented evidence that Appellee owned or, at the very

least, lived at the residence. Appellee’s brother, Patterson, stated that

Appellee owned the subject property.           Furthermore, the Commonwealth,

without objection, entered into the record Appellee’s criminal file listing 5644

Windale Avenue as his official address. The Commonwealth may rely on

hearsay at the preliminary hearing.            Tyler, 587 A.2d at 328.              The

Commonwealth also presented evidence that there was no indicia that

Patterson resided at the property.     N.T., 5/28/2013, at 51.           Furthermore,

police found multiple packages of marijuana, a digital scale, and firearms

hidden in a basement closet in close proximity with mail addressed to

Appellee   at   that   residence.    Based      on   all   of    the   foregoing,   the

Commonwealth established “sufficient probable cause to warrant the belief

that the accused” exercised “conscious dominion” over the recovered

firearms and narcotics held for sale.    Nieves, 876 A.2d at 424; Muniz, 5

A.3d at 348-349.       As such, it was error for the trial court to quash the

charges related to the contraband recovered from the residence.

      Next, we turn to the narcotics recovered from the vehicle in which

Appellee was riding.       The trial court opined that quashal was proper

because:

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J-S62024-14


               [M]ere presence in a vehicle is not sufficient to
        establish possession of contraband inside the vehicle.
        Com[monwealth] v. Townsend, 237 A.2d 192, 195
        ([Pa.] 1968); see also Com[monwealth] v. Spencer,
        621 A.2d 153, 156 (Pa. Super. 1993) (“The evidence failed
        to establish that [Spencer] knew cocaine was present in the
        vehicle and that she intended to exercise control over the
        contraband. It appears that [Spencer’s] guilt was proven
        by her mere association with [co-defendant], and such a
        verdict is unacceptable.”) [Appellee] was a passenger in
        the vehicle. There is no evidence to whom the vehicle was
        registered. There is no evidence of agreement between
        [Appellee] and [] Patterson. The sole connection between
        [Appellee] and [] Patterson is that they arrived at the scene
        together and [] Patterson claimed to be [Appellee’s]
        brother. “[T]he record simply does not demonstrate that
        [Appellee] knew there were drugs within the car, and,
        absent such evidence” there can be no prima facie showing
        of possession. [Spencer, 621 A.2d at 155]. Although
        officers noted a strong odor of marijuana emanating from
        the car, the smell alone is not sufficient to presume
        [Appellee] knew there was contraband in the vehicle.
        Taking the evidence as presented, and making all
        reasonable inferences in the light most favorable to the
        Commonwealth, a prima facie case of constructive
        possession with respect to [Appellee] and the contents of
        the vehicle was not established, and the charges were
        properly quashed.

Trial Court Opinion, 11/26/2013, at 6.

      We disagree. While mere presence will not suffice solely to establish

constructive possession, “[a] defendant's mere presence is at least a factor

to be considered as part of the totality of circumstances proving knowledge

of the presence of the contraband which is essential to a finding of intention

to exercise control over the substance.”     Commonwealth v. Harris, 397

A.2d 424, 429 (Pa. Super. 1979). There is no dispute that Appellee was in

the car at issue. “Upon arriving at the scene [… police] smelled the strong


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J-S62024-14



odor of marijuana emanating from the car” and “observed the bag in the

car, black and red Nike bag containing clear plastic baggies with various

types of leafy substances inside.” N.T., 5/28/2013, at 18. “[T]he [Nike] bag

was open in plain view with the contents clearly being visible.” Id. at 27.

The bag was on the backseat of the vehicle. Id. at 28. The marijuana was

in plain sight and emitted a strong odor, thus, we conclude that the trial

court erred by determining that there was no evidence that Appellee did not

know the narcotics there were drugs inside the car.6

       Additionally,    this   case   is   distinguishable    from   Townsend   and

Spencer.       In Townsend, police recovered a firearm that was partially

concealed under the front passenger seat of a vehicle driven by another

man.     There were other occupants in the car.              Upon review, this Court

determined that there was insufficient evidence to show that Townsend

knew the firearm was in the vehicle because there was no evidence of where

Townsend was sitting in relation to the gun and there were multiple people

in the vehicle.     Likewise, in Spencer, Spencer was a passenger in a car

where police saw a bag of narcotics sticking out of a driver-side armrest

compartment. A scuffle ensued between the driver and police, wherein the


____________________________________________


6
   Furthermore, Officer Bundy testified that he did not smell the odor of
marijuana emanating from the vehicle at issue or Patterson’s person when
Patterson first approached the residence alone. N.T., 5/28/2013, at 20-22,
28-29. Officers only smelled marijuana and noticed the Nike bag in the
backseat when Appellee was in the car. Id. at 23-39.



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J-S62024-14



driver sped away in the car and then threw the narcotics out the window. In

that instance, because the narcotics were entirely within the control of the

driver on his side of the vehicle, we determined that “[t]he evidence failed to

establish that [Spencer] knew cocaine was present in the vehicle and that

she intended to exercise control over the contraband.” Spencer, 621 A.2d

at 156.

      Here, there is no evidence that Patterson, as the driver of the car,

exercised exclusive control over the narcotics.        The vehicle was not

registered to Patterson.   N.T., 5/28/2013, at 51.    Moreover, as discussed

infra, the Commonwealth also established a prima facie case for conspiracy.

Furthermore, having already established that the Commonwealth set forth a

prima facie case for the marijuana found in the residence, we note that the

police uncovered the exact same controlled substance, in quantities

packaged and held for sale, in the vehicle.       In view of the totality of

circumstances, we reject Appellee’s assertion that he did not know there was

marijuana in the vehicle in which he was riding.      For all of the foregoing

reasons, we conclude the Commonwealth established a prima facie case for

the narcotics charges lodged against Appellee in relation to the contraband

recovered from the vehicle.

      Finally, the Commonwealth also charged Appellee with conspiracy,

which is defined as follows:

          A person is guilty of conspiracy with another person or
          persons to commit a crime if with the intent of promoting or
          facilitating its commission he:

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         (1)   agrees with such other person or persons that they or
               one or more of them will engage in conduct which
               constitutes such crime or an attempt or solicitation to
               commit such crime; or

         (2)   agrees to aid such other person or persons in the
               planning or commission of such crime or of an
               attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903.

      While more than mere association must be shown,

         the essence of criminal conspiracy is a common
         understanding, no matter how it came into being, that a
         particular criminal objective be accomplished. By its very
         nature, the crime of conspiracy is frequently not susceptible
         of proof except by circumstantial evidence. And although a
         conspiracy cannot be based upon mere suspicion or
         conjecture[,…] the relationships, conduct or circumstances
         of the parties[] and the overt acts on the part of the
         coconspirators have uniformly been held competent to
         prove that a corrupt confederation has in fact been formed.

Commonwealth v. Stetler, 95 A.3d 864, 887 (Pa. Super. 2014) (citation

omitted). “The Commonwealth can establish the existence of an agreement

by circumstantial evidence, and need not rely on direct evidence.”        Id.

This Court has indicated that four factors are to be utilized in deciding if a

conspiracy existed: “(1) an association between alleged conspirators; (2)

knowledge of the commission of the crime; (3) presence at the scene of the

crime; and (4) in some situations, participation in the object of the

conspiracy.”   Commonwealth v. Nypaver, 69 A.3d 708, 715 (Pa. Super.

2013).




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         In this case, the trial court determined that “[t]he only connection

between [Appellee] and [] Patterson is that they arrived at the scene

together and [] Patterson claimed to be [Appellee’s] brother.”      Trial Court

Opinion, 11/26/2013, at 7.      These facts, however, clearly satisfy the first

and third factors of the test above.    Moreover, the narcotics found in the

vehicle were in plain view and emitted a strong odor and, as previously

discussed, were within joint constructive possession of Appellee and

Patterson.      Viewing the evidence in the light most favorable to the

Commonwealth's case and giving all reasonable inferences from the record,

there was sufficient probable cause to warrant the belief that Appellee

engaged in a conspiracy with Patterson. Nieves, 876 A.2d at 424.

         Accordingly, we conclude that the Commonwealth set forth sufficient

evidence to establish a prima facie case for all five of the charges against

Appellee.    Hence, we vacate the order quashing the criminal informations,

reinstate the original charges against Appellee, and remand the case for

trial.

         Order vacated. Criminal charges reinstated. Case remanded for trial.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2014




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