Com. v. Harris, K. ( 2016 )

J-A11001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KEITH HARRIS,
Appellee No. 2525 EDA 2014
Appeal from the Order Entered July 30, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0048044-2013
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 13, 2016
The Commonwealth appeals from the order denying its motion to refile
criminal charges against Appellee, Keith Harris, in the above-captioned
matter after the court of common pleas determined the Commonwealth
failed to present a prima facie case to permit a trial. Upon careful review,
we reverse.
We summarize the procedural history of this case as follows. In the
early evening of December 19, 2013, Philadelphia Police were conducting
surveillance in the 2900 block of Kip Street when they observed Appellee’s
involvement with Ricardo Correa to the extent that they believed Appellee
was participating in the sale of narcotics with Mr. Correa. On December 20,
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*
Former Justice specially assigned to the Superior Court.
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2013, Appellee was charged with possession of a controlled substance,
possession of a controlled substance with intent to deliver, and conspiracy.
At a preliminary hearing held before the Honorable Nazario Jimenez of
the Municipal Court of Philadelphia County on April 16, 2014, the charges
brought against Appellee were dismissed due to lack of evidence.1 On
May 16, 2014, the Commonwealth filed a notice of refiling of the criminal
complaint against Appellee. On July 30, 2014, a preliminary hearing was
conducted before the Honorable Harold M. Kane of the Court of Common
Pleas of Philadelphia County. At the close of the hearing, Judge Kane denied
the Commonwealth’s motion to refile the charges against Appellee. The
Commonwealth then filed a motion for reconsideration on August 1, 2014,
which was never addressed. Thereafter, on August 28, 2014, the
Commonwealth filed this timely appeal.2
The Commonwealth presents the following issue for our consideration:
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1
It is well settled that “[a] magistrate’s decision to dismiss criminal charges
after a preliminary hearing is unappealable.” Commonwealth v. Carbo,
822 A.2d 60, 64 (Pa. Super. 2003) (citation omitted). “Therefore, the
reinstitution of charges is the only recourse available to the Commonwealth
after it fails to establish a prima facie case at a preliminary hearing.” Id. As
will be discussed infra, the Commonwealth refiled the charges against
Appellant, and the July 30, 2014 order from which it is now appealing
essentially dismissed those charges for a second time.
2
Although not ordered to do so by the trial court, on August 28, 2014, the
Commonwealth filed a Pa.R.A.P. 1925(b) statement. The trial court has not
prepared an opinion pursuant to Pa.R.A.P. 1925(a).
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Properly viewed in the light most favorable to the
Commonwealth, did the evidence at the preliminary hearing
establish a prima facie case of possession of narcotics with intent
to deliver and conspiracy?
Commonwealth’s Brief at 4.
The Commonwealth argues that the court of common pleas erred in
denying the Commonwealth’s motion to refile the charges against Appellee,
claiming that it established a prima facie case that Appellee conspired with
Mr. Correa to sell drugs. The Commonwealth points to the evidence that
Appellee accepted a large sum of cash from Mr. Correa, repeatedly entered
an abandoned home that contained 140 vials of crack cocaine, as well as
thirty packets of heroin and $370.00, and that Appellee “stood watch” on a
street corner while Mr. Correa sold drugs to two individuals. The
Commonwealth claims that the trial court’s failure to find that Appellee’s
actions amounted to the statutory definition of conspiracy was legal error.
We are constrained to agree.
We begin by noting that “[t]he question of the evidentiary sufficiency
of the Commonwealth’s prima facie case is one of law,” and as such, our
review is plenary. Commonwealth v. Huggins, 836 A.2d 862, 865 (Pa.
2003). In Huggins, our Supreme Court explained:
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
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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.”
Huggins, 836 A.2d at 866 (citations omitted).
Here, the Commonwealth charged Appellee with the crimes of
possession of narcotics, possession with intent to deliver, and criminal
conspiracy. Regarding the crime of possession with intent to deliver, we
have stated the following:
To establish the offense of possession of a controlled substance
with intent to deliver, the Commonwealth must prove beyond a
reasonable doubt that the defendant possessed a controlled
substance with the intent to deliver it. The intent to deliver can
be inferred from an examination of the surrounding facts and
circumstances. Factors to consider in determining whether the
drugs were possessed with the intent to deliver include the
particular method of packaging, the form of the drug, and the
behavior of the defendant.
The Commonwealth has the option to establish actual or
constructive possession.
Constructive possession requires proof of the ability
to exercise conscious dominion over the substance,
the power to control the contraband, and the intent
to exercise such control. Constructive possession
may be established by the totality of the
circumstances.
Commonwealth v. Perez, 931 A.2d 703, 707-708 (Pa. Super. 2007)
(citations and quotation marks omitted).
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Further, with regard to the crime of criminal conspiracy we have
stated:
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.
Additionally:
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.
“While the Commonwealth is not required to prove a written or
express agreement, a tacit agreement must be established by
reasonable inferences arising from the facts and circumstances
and not by mere suspicion or conjecture.” Circumstances like an
association between alleged conspirators, knowledge of the
commission of the crime, presence at the scene of the crime,
and/or participation in the object of the conspiracy, are relevant
when taken together in context, but individually each is
insufficient to prove a conspiracy.
Perez, 931 A.2d at 708. Thus, even if a defendant was not the principal
actor in a drug transaction, he would be guilty of the underlying crime based
upon actions taken by co-conspirators in furtherance of the commission of
the crime. See Commonwealth v. McCall, 911 A.2d 992, 997 (Pa. Super.
2006) (evidence sufficient to sustain possession with intent to deliver and
conspiracy convictions where the defendant stood watch during drug
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transactions and received proceeds even though the defendant never
handled drugs).
The facts, as presented to the trial court at the July 30, 2014 hearing,
are as follows:
The facts of this case are [Mr. Correa] is seen by police
officers counting United States currency which [Mr. Correa] gives
to [Appellee] at the beginning of this case.
This is approximately 7:15 PM, police officers are
observing [Mr. Correa] and [Appellee] on the street.
When [Mr. Correa] hands the money to [Appellee] he says
there you go that’s $115.00 to [Appellee].
[Appellee] takes the money. The two are standing outside
of an abandoned property.[3] They go into the abandoned
property together, Your Honor, and then they come out
approximately one to two minutes later.
When they come out of the abandoned property together
what happens is they go to the street corner and a buyer
approaches.
Two sales take place at that time, Your Honor. Both sales
are done by [Mr. Correa]. One of those buyers [is] stopped and
has on their person -- oh, one other factor that I need to
mention is when they come out of this abandoned property they
don’t have anything in their hands when they go in. When they
come out [Mr. Correa] is handling a clear bag.
[Mr. Correa] does the two sales from that clear bag. So
both of the sales are --
* * *
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3
At the hearing on April 16, 2014, the police officer described the
abandoned property as having no electricity, no windows, and being strewn
with trash. N.T., 4/16/14, at 5.
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Actually, [Mr. Correa] is holding it in his mouth initially
when he walks out the door, Your Honor. But [Mr. Correa is]
holding the bag and they do two sales from the corner from this
bag. Again, that’s [Mr. Correa].
However, the second buyer is stopped, Your Honor, and
drugs are recovered from that buyer. They are two black vials of
cocaine with black caps on them.
What happens next is [Appellee] is again seen counting
money after the second sale. Immediately afterwards he is seen
counting money standing next to [Mr. Correa].
[Appellee] then goes into the abandoned property again
for one additional minute, Your Honor. [Appellee] comes back
out. After that, Your Honor, there is another sale. What
happens next is police officers go in to stop [Mr. Correa] and
[Appellee].
Off of [Mr. Correa] they find eight matching vials of
cocaine on his person with the black caps on them. They also
find $100.00 United States currency.
In the property, inside the abandoned property, twenty
feet from the door there is a hole in the floor. There is one
hundred and forty vials of cocaine, Your Honor, and thirty
packets of heroin, too. They matched the cocaine that’s sold
and they matched the other cocaine that is recovered.
And they also find $370.00 United States currency in bags
on the floor, Your Honor.[4] So those are the facts of this case.
N.T., 7/30/14, at 3-6.
Upon review of the foregoing evidence, we are constrained to conclude
that the facts stated above, viewed in the light most favorable to the
Commonwealth, amounted to enough evidence to establish a prima facie
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4
At the April 16, 2014 hearing, the police officer testified that he recovered
only $55.00 from Appellee’s person. N.T., 4/16/14, at 8.
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case of possession, possession with intent to deliver, and criminal
conspiracy. Accordingly, we conclude the trial court erred when it denied
the Commonwealth’s motion to refile the charges that were dismissed by the
municipal court. Hence, the trial court’s order is reversed and the case is
remanded for further proceedings consistent with this memorandum.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2016
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