J-A20015-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                    : IN THE SUPERIOR COURT OF
                                                 :      PENNSYLVANIA
                        Appellant                :
                                                 :
              v.                                 :
                                                 :
TAMEIR R. BROWN,                                 :
                                                 :
                        Appellee                 : No. 1644 EDA 2014

                     Appeal from the Order May 7, 2014,
                 Court of Common Pleas, Philadelphia County,
               Criminal Division at No. MC-51-CR-0031021-2013

BEFORE: DONOHUE, SHOGAN and WECHT, JJ.

MEMORANDUM BY DONOHUE, J.:                                FILED AUGUST 07, 2015

      The Commonwealth appeals from the order entered on May 7, 2014 in

the   Court        of   Common        Pleas,   Philadelphia   County,   denying   the

Commonwealth’s motion to refile the criminal complaint against Tameir R.

Brown (“Brown”). For the reasons set forth herein, we reverse and remand.

      A brief summary of the facts and procedural history is as follows. At

approximately 9:30 p.m. on August 9, 2013, Brown was riding as a

passenger in the front seat of a vehicle owned by his mother and driven by

Cornelius Mines (“Mines”).           Brown and Mines were traveling on the 3100

block of North Darien Street in Philadelphia when police officer Mitchell

Yanak (“Officer Yanak”) and his partner pulled their vehicle over to conduct

a vehicle investigation.       As Officer Yanak approached, Mines attempted to

get out of the vehicle.            Officer Yanak ordered Mines to stay in the car.
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Officer Yanak observed that both Mines and Brown were moving around in

the vehicle. When he got to the car, Mines had his hands concealed by a

hooded sweatshirt. Officer Yanak and his partner removed Mines and Brown

from the vehicle for safety reasons.

      Officer Yanak returned to the vehicle after placing Mines in his police

car and with the assistance of a flashlight, observed a black handgun

protruding from the rear center console in plain view. According to Officer

Yanak, approximately one inch of the gun was visible.      Officer Yanak also

opened the glove compartment of the vehicle and recovered a clear

sandwich bag containing crack cocaine. The police subsequently obtained a

search warrant. Upon execution of the search warrant, police officer Chris

Holmes (“Officer Holmes”) recovered two digital scales and numerous new

and unused jars with pink lids from the trunk of the vehicle.

      Brown was arrested and charged with possession with intent to deliver

a controlled substance, 35 P.S. § 780-113(a)(30), conspiracy, 18 Pa.C.S.A.

§ 903, possession of a controlled substance, 35 P.S. § 780-113(a)(16),

persons not to possess firearms, 18 Pa.C.S.A. § 6105, and carrying firearms

on public streets or public property in Philadelphia, 18 Pa.C.S.A. § 6108.

      A preliminary hearing was held on October 22, 2013.            After the

Commonwealth rested its case, Brown moved for the dismissal of all charges

against him. Brown asserted that the Commonwealth was unable to show

that he constructively possessed the drugs, the gun, or the digital scales in



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the vehicle. The trial court found that the testimony established that Brown

was merely a passenger in the vehicle and was not observed accessing the

glove compartment or the rear of the vehicle.                Thus, the trial court

determined that the evidence did not connect Brown to the items recovered

from the vehicle and discharged the case against Brown for lack of evidence.

      On January 8, 2014, the Commonwealth filed a motion to refile the

criminal complaint against Brown.        On May 7, 2014, the trial court held a

hearing on the motion during which the Commonwealth incorporated the

transcripts from the October 22, 2013 hearing into the record.                     The

Commonwealth       thereafter     attempted     to    supplement    the   record    by

introducing an audio recording of a phone call Brown made while

incarcerated that allegedly demonstrated his knowledge of the items in the

vehicle and an admission that the items in the vehicle belonged to him.

Brown objected to any additional evidence being offered.             The trial court

granted Brown’s objection, finding that the recordings of a conversation that

occurred   after   Brown’s      arrest   were   not    relevant,   and    denied   the

Commonwealth’s motion to refile the charges.

      On June 3, 2014, the Commonwealth filed a timely notice of appeal,

raising the following issue for our review:

            Did the lower court, in considering refiled charges,
            err in refusing to admit additional evidence in the
            form of a prison telephone tape of [Brown] admitting
            that the “stuff” found in the car in which he was
            arrested for drug and gun possession belonged to



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           him; and, having erroneously excluded [Brown’s]
           admission, err in holding that the evidence was
           insufficient for a prima facie case of possession of
           the gun and drugs?

Commonwealth’s Brief at 1.

     We begin with our well-settled standard of review regarding the

admission of evidence:

              Admission or exclusion of evidence at trial rests
           within the discretion of the trial court. We will not
           reverse the trial court’s decision absent an abuse of
           that discretion. An abuse of discretion is not merely
           an error of judgment, but is rather the overriding or
           misapplication of the law, or the exercise of
           judgment that is manifestly unreasonable, or the
           result of bias, prejudice, ill-will or partiality, as
           shown by the evidence of record. If in reaching a
           conclusion the trial court overrides or misapplies the
           law, discretion is then abused and it is the duty of
           the appellate court to correct the error.

Commonwealth v. Williams, 91 A.3d 240, 242 (Pa. Super. 2014) (internal

quotations and citations omitted).

     In this case, the evidence at issue is an audio recording of Brown’s

conversation with a woman while he was incarcerated during which he

reportedly claimed ownership of “the stuff in the car.” N.T., 5/7/14, at 11.

The Commonwealth asserts that the trial court “misapplied the applicable

law governing the admissibility of evidence at a preliminary hearing, [and]

abused its discretion in precluding the tape [recording].” Commonwealth’s

Brief at 10. The Commonwealth specifically argues that the evidence was

relevant because it had “an obvious, logical tendency to make more



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probable the existence of his dominion and control over the contraband – a

material fact of great consequence to the determination of the refiling action

– than it would if that evidence did not exist.” Id. at 9-10; see Pa.R.E. 401.

After reviewing the record, we agree.

      The weapon and drugs were not found on Brown’s person and thus,

the Commonwealth was required to establish that Brown constructively

possessed the items. See Commonwealth v. Vargas, 108 A.3d 858, 868

(Pa. Super. 2014) (stating, “If the contraband is not discovered on the

defendant’s person, the Commonwealth may satisfy its evidentiary burden

by proving that the defendant had constructive possession ….”) (citation

omitted).

                Constructive possession is a legal fiction, a
            pragmatic construct to deal with the realities of
            criminal law enforcement. Constructive possession is
            an inference arising from a set of facts that
            possession of the contraband was more likely than
            not. We have defined constructive possession as
            “conscious dominion.”     We subsequently defined
            “conscious dominion” as “the power to control the
            contraband and the intent to exercise that control.”
            To aid application, we have held that constructive
            possession may be established by the totality of the
            circumstances.

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

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004), appeal

denied, 63 A.3d 1243 (Pa. 2013)).




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      The question presented to this Court, therefore, is whether the

recording of Brown’s telephone call provides relevant evidence to prove that

he was in constructive possession of the weapon and the drugs. The trial

court excluded the audio recording, finding that it was not relevant, after the

following exchange:

            [COMMONWEALTH]: And, Your Honor, as C-3, I’d
            ask to play one call. I’ll fast forward to the relevant
            part to demonstrate the defendant’s knowledge of
            those items in that vehicle.

            THE COURT: Any response, Mr. Stein?

            [DEFENSE COUNSEL]: I object to any additional
            evidence being offered at this time, Your Honor.

            [COMMONWEALTH]: Your Honor, we always have the
            right to submit --

            [DEFENSE COUNSEL]: The record from the
            Preliminary Hearing is quite clear cut. There was not
            enough evidence to establish this defendant was
            exercising any kind of dominion control over any of
            the contraband or the firearm or controlled
            substances that were in the vehicle.

            THE COURT: All right. I’m going to grant Mr. Stein’s
            request that you not play the tape.

            [COMMONWEALTH]: Your Honor, under what basis? I
            have the right to supplement the record. It’s the
            defendant’s own statements.

            THE COURT: Yes, but this is subsequent, I’m
            assuming, to this incident?

            [COMMONWEALTH]: No, actually, well, it’s when he’s
            --




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           THE COURT: I mean it wasn’t done at the time of the
           alleged arrest or anything, correct?

           [DEFENSE COUNSEL]: Right.

           [COMMONWEALTH]: No it wasn’t, but it’s still his
           statements that could be used against him.

           THE COURT: No. Anything else, sir?

           [COMMONWEALTH]: Your Honor, I’d ask to just put
           on the record the basis for denying my request to
           supplement this record with the prison calls?

           THE COURT: I don’t see any relevance to it, if it took
           place, whatever this alleged tape is the conversation
           that took place after the arrest of this incident.

           [COMMONWEALTH]: Your Honor, we wouldn’t know
           the relevance unless we actually heard the context of
           the call. I can give you an offer of proof.

           THE COURT: No. In fact, do you have anything else?

           [COMMONWEALTH]: No. Can I just place on the
           record what my offer of proof would be?

           THE COURT: Yes. You can place it on the record.

           [COMMONWEALTH]: Offer of proof, prison call on
           8/16, I believe, this arrest is on the ninth. I’m sorry,
           the twelfth of August. The call is from the defendant
           speaking to a female.         It’s my position it’s his
           mother. The mother is asking him, “The stuff in the
           car, was it yours?” The defendant states, “Yes. It
           was mine.”

                                    ***

           THE COURT: I’m going to deny the refile of this
           matter.

N.T., 5/7/14, at 9-11.



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      In   its   subsequent   opinion   pursuant   to   Rule   1925(a)   of    the

Pennsylvania Rules of Appellate Procedure, the trial court stated:

                    The permitting of a recording, post-incident,
                 from a prison recording in this matter is
                 speculative and unverified.     It was properly
                 disallowed as many different scenarios could be
                 interpreted by such evidence, not providing the
                 trustworthy evidence needed to hold the
                 defendant on the charges, given the factual basis
                 already provided in the record.

                                        ***

                    In sum, although one might be suspicious that
                 the defendant constructively possessed a firearm,
                 suspicion and conjecture do not constitute a
                 prima facie case.

Trial Court Opinion, 1/22/15, at 5.

      It is well settled that “[t]he preliminary hearing is not a trial.      The

principal function of a preliminary hearing is to protect an individual’s right

against an unlawful arrest and detention.” Commonwealth v. Sebek, 716

A.2d 1266, 1268-69 (Pa. Super. 1998) (emphasis in original) (quoting

Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991)).                       “The

Commonwealth’s duty at a preliminary hearing is to present a prima facie

case.” Commonwealth v. Claffey, 80 A.3d 780, 788 (Pa. Super. 2013).

                    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. In determining the
                 presence or absence of a prima facie case,
                 inferences reasonably drawn from the evidence of



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               record that would support a verdict of guilty are
               to be given effect, but suspicion and conjecture
               are not evidence and are unacceptable as such.

                  Stated another way, a prima facie case in
               support of an accused’s guilt consists of evidence
               that, if accepted as true, would warrant
               submission of the case to a jury. Therefore, proof
               of the accused’s guilt need not be established at
               this stage.

Commonwealth v. Cordoba, 902 A.2d 1280, 1285 (Pa. Super. 2006)

(quoting Commonwealth v. Miller, 810 A.2d 178, 181 (Pa. Super. 2002)

(citations omitted)).

      Rule 401 of the Pennsylvania Rules of Evidence provides that

“[e]vidence is relevant if: (a) it has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.”      Pa.R.E. 401.    In this case, the

evidence from the audio recording had a tendency to make the issue of

whether Brown constructively possessed the drugs and the gun, a fact of

consequence in determining the action, more probable than it would be

without the evidence. The excluded audio recording allegedly contained an

admission by Brown that items in a car were his.             Although Brown

apparently did not identify the items or the vehicle, the telephone call in the

audio recording is alleged to have occurred a mere three days after Brown

was arrested while he was incarcerated on the charges stemming from the

arrest.   Viewed in a light most favorable to the Commonwealth, this




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evidence could support the Commonwealth’s position that Brown was not

merely a passenger in the vehicle as the trial court found at the preliminary

hearing held on October 22, 2013, and that the items in the vehicle

belonged to Brown.        Accordingly, we conclude that the evidence was

relevant to connect Brown to the items recovered from the vehicle and

therefore, was relevant to the Commonwealth’s prima facie case against

Brown. The trial court’s exclusion of the evidence on the basis that it was

not relevant was improper and an abuse of discretion.1

     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2015




1
    Given our disposition that the trial court abused its discretion by
improperly excluding relevant evidence, we decline the Commonwealth’s
invitation to determine whether the evidence presented was sufficient to
establish a prima facie case of possession. On remand, after admitting the
audio recording and hearing it, the trial court should make this
determination.


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