J-S15038-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ROBERT KEVIN COOK                          :   No. 1628 WDA 2019

                Appeal from the Order Entered October 9, 2019
      In the Court of Common Pleas of Beaver County Criminal Division at
                        No(s): CP-04-CR-0000899-2019


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

MEMORANDUM BY STEVENS, P.J.E.:                           FILED APRIL 22, 2020

       The Commonwealth of Pennsylvania appeals from the Order entered in

the Court of Common Pleas of Beaver County on October 9, 2019, granting

Appellee Robert Kevin Cook’s motion for habeas corpus relief for lack of prima

facie evidence with regard to charges of possession with intent to deliver a

controlled substance and conspiracy to commit possession with intent to

deliver a controlled substance.1 These charges stemmed from the execution




____________________________________________


*Former Justice specially assigned to the Superior Court.
1 The Commonwealth refers to the aforementioned charges as Counts 3 and
4 respectively; however, the trial court denied Appellee’s petition for habeas
corpus in regard to Count 4, which it listed as Intentional Possession of a
Controlled Substance. See Opinion and Order, 10/9/19, at 5.
J-S15038-20



of a search warrant on February 1, 2019. Following a careful review, we

reverse and remand for further proceedings.2

       Our review of the certified record reveals that following an investigation

of three individuals: Donald Williams, Jeremiah Irving, Appellee, Trooper

Joshua Fachet obtained and executed a search warrant for the area of 4600

4th Avenue, Apartments 3 and 4, in Beaver Falls, Pennsylvania.            At the

Preliminary Hearing held on April 30, 2019, Trooper Fachet testified that upon

entering Apartment 4 after executing that warrant on February 1, 2019, the

Pennsylvania SERT team located several individuals.            N.T. Preliminary

Hearing, 4/30/19, at 8. When he ultimately arrived, Trooper Fachet observed

several individuals in the dining room; Although the Pennsylvania State Police

Special Emergency Response Team (SERT) already had taken Appellee from

the scene, Trooper Fachet learned Appellee and Irving had been found in the

dining room, and Williams was lying in the doorway between the dining room

and kitchen. Id. at 9, 12.

       A Vice Unit police officer on the scene notified Trooper Fachet that two,

clear, knotted baggies, one of which contained suspected crack cocaine and

the other of which contained two baggies of a white, powdery substance that

was believed to be cocaine, were found in the toilet. Id. at 10. Trooper Fachet
____________________________________________


2 The Commonwealth has perfected its interlocutory appeal from the Order
granting Appellee’s suppression motion in that its notice of appeal contains
the requisite statement certifying that the Order would “substantially handicap
the prosecution” pursuant to Pa.R.A.P. 311(d) and 904(e).



                                           -2-
J-S15038-20



estimated a total amount of two to three ounces of cocaine was contained in

the baggies. Id.

      On the kitchen countertop, Trooper Fachet observed a Pyrex cup and

baking soda along with a stainless steel knife stained with white residue. In

Trooper Fachet’s experience, such items are used to make crack cocaine. Id.

at 11. A scale with a small piece of a white chunky substance on it was found

near Appellee and Irving in the dining room.      Id. In addition to a stolen

handgun found in the living room, Trooper Fachet recovered $1,700 from

Irving and $1,800 from Williams. Id. at 12.

      In the only bedroom of the home, Trooper Fachet observed a small,

knotted baggie containing suspected crack cocaine and a crack pipe in the top,

right dresser drawer. Id. at 13. Also therein were items bearing Appellee’s

name and the address of the apartment. Id.

      Trooper Fachet filed a criminal complaint on February 1, 2019, charging

Appellee with the following five counts: Receiving Stolen Property; Conspiracy

to Commit Receiving Stolen Property; Possession with Intent to Deliver;

Conspiracy to Commit Possession with Intent to Deliver; and Possession. On

June 10, 2019, the Commonwealth filed a criminal information charging

Appellee with the same five counts.      On July 19, 2019, Appellee filed a

counselled Omnibus Pre-Trial Motion for Relief wherein he requested a grant

of habeas corpus due to a lack of sufficient evidence.

      On October 1, 2019, the trial court held a Pre-Trial hearing at which

time Trooper Fachet provided additional testimony. Specifically, he explained

                                     -3-
J-S15038-20



that surveillance at 4600, 4th Avenue, Apartment 4 identified Irving entering

and exiting the residence, and photographs of him were taken on January 22-

23, 2019. N.T. 10/1/19, at 9-10. Also, the search of the apartment revealed

a court document and a shipping label bearing Appellee’s name and the

Apartment 4 address. Id. at 12. In fact, while detained, Appellee admitted

he resided in the apartment. Id. at 13.

     Trooper Fachet also commented upon the approximately $1700 and

$1800 found on Irving and Williams respectively. In doing so, he noted that

based upon his training and experience “individuals will allow dealers or drug

traffickers to utilize their apartment for many reasons, for payment or also

through controlled substances, various reasons, so it’s not unusual that the

owner of the residence is not holding a lot of money.” Id. at 38.

     In its October 9, 2019, Order the trial court granted, in part, Appellee’s

suppression motion. The Commonwealth filed a timely notice of appeal on

November 1, 2019. Although the trial court did not direct the Commonwealth

to file a concise statement of the matters complained of on appeal pursuant

to Pa.R.A.P. 1925(b), the trial court filed a Rule 1925(a) Opinion on October

9, 2019.

     In its appellate brief, the Commonwealth presents the following question

for our review:

            Whether the trial court erred in ruling that the evidence was
     insufficient for a prima facie case at to possession with intent to
     deliver and conspiracy to commit [sic] possession with intent to
     deliver.

                                    -4-
J-S15038-20



Brief of Appellant at 7.

         The Commonwealth argues the trial court erred in finding Appellee

lacked the requisite control of the contraband to establish possession

because other occupants also were present in the apartment, for the

fact that additional individuals were there at the time of the execution

of the search warrant is not dispositive of whether Appellee had

constructive possession of the contraband. Brief of Appellant at 19. In

addition, the Commonwealth urges that the quantity of drugs police

discovered in the apartment was sufficient to establish a prima facie

case of possession with intent to deliver the same. Id. at 21-23. The

Commonwealth further posits that in light of existing caselaw, at a

minimum, the evidence established Appellee had a shared criminal

intent with his cohorts to commit possession with intent to deliver. Id.

at 26.

         At the outset, we recognize:

         In reviewing a trial court’s order granting a defendant’s petition
         for writ of habeas corpus, we must generally consider whether the
         record supports the trial court’s findings, and whether the
         inferences and legal conclusions drawn from those findings are
         free from error. A trial court may grant a defendant’s petition for
         writ [of] habeas corpus after a preliminary hearing where the
         Commonwealth has failed to present a prima facie case against
         the defendant.

Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa.Super. 2017) (quotation

marks and citations omitted). Further:


                                        -5-
J-S15038-20



        The evidentiary sufficiency of the Commonwealth’s case, or lack
        thereof, is a question of law; as such, our scope of review is
        plenary. Commonwealth v. Karetny, [ ] 880 A.2d 505, 528 (
        [Pa.] 2005). We have previously described the well-settled
        principles governing preliminary hearings, as well as the
        Commonwealth’s concomitant burden, as follows:
                   The purpose of a preliminary hearing is to
             determine whether the Commonwealth has made out a
             prima facie case for the offenses charged. A prima facie
             case consists of evidence, read in the light most
             favorable to the Commonwealth, that sufficiently
             establishes both the commission of a crime and that the
             accused is probably the perpetrator of that crime.
                   The Commonwealth establishes a prima facie case
             when it produces evidence that, if accepted as true,
             would warrant the trial judge to allow the case to go to
             a jury. The Commonwealth need not prove the elements
             of the crime beyond a reasonable doubt; rather, the
             prima facie standard requires evidence of the existence
             of each and every element of the crime charged.
             Moreover, the weight and credibility of the evidence are
             not factors at this stage, and the Commonwealth need
             only demonstrate sufficient probable cause to believe
             that the person charged has committed the offense.

        Commonwealth v. Ouch, 199 A.3d 918, 923 (Pa. Super. 2018)
        [ ].

Commonwealth v. Perez, 220 A.3d 1069, 1075 (Pa.Super. 2019) (en banc)

(emphasis and footnote omitted), appeal granted on other grounds, March 2,

2020.

   Furthermore, “[t]o 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.”

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016)

(citation omitted). The Commonwealth may sustain its burden of proving

                                          -6-
J-S15038-20


every element of the crime(s) by means of wholly circumstantial evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011). However,

“we have also noted that suspicion and conjecture are not evidence and are

unacceptable as such.” Commonwealth v. Holston, 211 A.3d 1264, 1269

(Pa.Super. 2019) (en banc) (citation omitted). “Where the Commonwealth’s

case relies solely upon a tenuous inference to establish a material element

of the charge, it has failed to meet its burden of showing that the crime

charged was committed.” Id. (citation omitted, emphasis in original). “To

meet its burden, the Commonwealth may utilize the evidence presented at

the preliminary hearing and also may submit additional proof.” Dantzler, 135

A.3d at 1112 (citation omitted).

      The Crimes Code defines Possession with Intent to Deliver (PWID) as

follows:

      Except as authorized by this act, 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 licenses 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). This Court has explained the evidence necessary

to sustain a PWID conviction under 35 P.S. § 780-113(a)(30) as follows:

             The Commonwealth establishes the offense of [PWID] when
      it proves beyond a reasonable doubt that the defendant possessed
      a controlled substance with the intent to deliver it.
             To determine whether the Commonwealth presented
      sufficient evidence to sustain [a defendant’s] conviction for
      [PWID], all of the facts and circumstances surrounding the
      possession are relevant and the elements of the crime may be

                                    -7-
J-S15038-20


      established by circumstantial evidence. Furthermore, possession
      with intent to deliver can be inferred from the quantity of the
      drugs possessed along with the other surrounding circumstances.

Commonwealth v. Little, 879 A.2d 293, 297 (Pa.Super. 2005) (internal

citations omitted).

              Possession may be proved “by showing actual possession,
      constructive possession, or joint constructive possession.”
      Commonwealth v. Hall, 199 A.3d 954, 960 (Pa.Super. 2018).
      Constructive possession is the ability to exercise a conscious
      dominion over the contraband. It usually comes into play when
      police find contraband somewhere other than on the defendant's
      person. Constructive possession requires proof that the defendant
      had knowledge of the existence and location of the item. The
      Commonwealth may prove such knowledge circumstantially. That
      is, it may prove that the defendant had knowledge of the existence
      and location of the items at issue from examination of the totality
      of the circumstances surrounding the case, such as whether the
      contraband was located in an area usually accessible only to the
      defendant.
              For the Commonwealth to prove constructive possession
      where more than one person has access to the contraband, the
      Commonwealth must introduce evidence demonstrating either the
      defendant’s participation in the drug-related activity or evidence
      connecting the defendant to the specific room or areas where the
      drugs were kept.

Id. at 961 (cleaned up).

      In addition, Conspiracy requires:

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


                                     -8-
J-S15038-20


      In its Opinion, the trial court provides the following, brief rationale in

support of its finding that the evidence has been legally insufficient to show

PWID or conspiracy to PWID:

      “Factors in determining whether a defendant intended to deliver a
      controlled substance include the manner in which the controlled
      substance was packaged, the behavior of the defendant, the
      presence of drug paraphernalia, and large sums of cash found in
      possession of the defendant.” Commonwealth v. Sherrell, 607
      A.2d 767, 769 (Pa.Super. 1992). Trooper Fachet stated that the
      crack cocaine found in [Appellee’s] dresser was an amount
      packaged that is commonly used for personal use and that no
      money was found on [Appellee] at the time of the search. PHT,
      33, 30. “The quantity of the controlled substance is but one factor
      that courts look to in analyzing whether a defendant had the
      necessary     intent   to   deliver   a   controlled    substance.
      Commonwealth v. Pagan, 461 A.2d 321, 322 (Pa.Super. 1983). A
      scale was found near [Appellee] and the scale had less than a
      gram of residue on it. PHT, 17, 33. Possession of a small quantity
      of drugs, by itself, will not establish possession with intent to
      deliver…” Commonwealth v. Smagala, 383 Pa.Super. 466, 557
      A.2d 347 (1989). There has been nothing further provided and
      based on the above reasoning, [Appellee’s] Petition for Habeas
      Corpus in regards to not only Count 3, but also allegations of
      Conspiracy to PWID, is GRANTED.

Trial Court Opinion, filed 10/9/19, at 4 (emphasis in original). Following our

review of the record, we disagree.

      As stated previously, when executing a search warrant at 4600 4th

Avenue Apartment 4, police observed Appellee in the dining room with Irving

and Williams. A scale with suspected cocaine on top was located on the dining

room table, and two to three ounces of cocaine were found in a nearby toilet.

In addition to Appellee’s own admission that he resided there, police




                                     -9-
J-S15038-20


discovered a court document and packing slip bearing his name in the only

bedroom in the apartment.

         In light of this evidence viewed in a light most favorable to the

Commonwealth and under the totality of the circumstances, we agree with the

Commonwealth that “[i]t cannot be argued that [Appellee] was merely present

in the apartment and didn’t have the requisite control because there were

other occupants in the apartment.” Appellant’s Brief at 19. To the contrary,

we find that, at a minimum, such evidence establishes a prima facie case for

the constructive and joint possession of the contraband found in the dining

room, kitchen and toilet. See Little, supra. Accord Hall, supra at 961-62

(holding evidence was sufficient to establish constructive possession where

police    recovered   drugs,   scales,    packaging   material,   and   defendant’s

documents in a one-bedroom apartment).

         The same holds true with regard to the possession with intent to deliver

charge. In reaching its conclusion, the trial court disregarded the two to three

grams of cocaine found in the toilet in Appellee’s apartment and considered

only the quantity of drugs found in the dresser drawer and on the scale.

However, this evidence, along with the scale and other manufacturing

materials found in the kitchen, the large quantity of cash discovered on Irving

and Williams, and the proof of Appellee’s residency, establish a prima facie

case that Appellee constructively possessed a quantity of cocaine with an

intent to deliver the same. Id.


                                         - 10 -
J-S15038-20


      Finally, the trial court’s analysis is essentially devoid of any discussion

pertaining to whether or not a conspiracy existed between Appellee and his

codefendants.    However, from the aforementioned web of evidence, viewed

in the light most favorable to the Commonwealth, we find the Commonwealth

established a prima facie case that Appellee, Irving and Williams had a shared

criminal intent to sell the cocaine over which the three men exercised

conscious dominion and control.

      Prior to the execution of the search warrant, police observed Irving

entering and exiting numerous areas of the apartment building as well as

Appellee’s residence. When officers entered Apartment 4, Appellee’s admitted

residence, Irving, Williams and he were found in the same room and in close

proximity to the drugs and other contraband. Although Appellee did not have

a large sum of cash on his person, Trooper Fachet explained that in his training

and experience he had learned that an individual often allows a drug dealer to

utilize his or her apartment to further the illegal enterprise. This circumstantial

evidence establishes, at a minimum, that the Commonwealth put forth a prima

facie case of conspiracy to commit possession with intent to deliver.         See

Commonwealth v. Jones, 874 A.2d 108, 122 (Pa.Super. 2005) (ruling

circumstantial evidence of relationship with other occupant of a vehicle and

joint access to contraband was sufficient to sustain conspiracy conviction).

      Accordingly, we reverse the Order granting Appellee habeas corpus

relief and remand for trial.


                                      - 11 -
J-S15038-20



     Order Reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/2020




                                 - 12 -
