Com. v. Brown, T. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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