Com. v. Evans, B. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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.
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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.
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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
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2
None of the investigating officers’ first names were identified on the record.
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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
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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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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).
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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).
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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:
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[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
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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
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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.
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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
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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.
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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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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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[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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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
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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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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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