Com. v. Mitchell, L. ( 2017 )

J-S39019-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA ¦ IN THE SUPERIOR COURT OF
¦ PENNSYLVANIA
Appellant ¦
¦
v. ¦
¦
LADAYA DA SHAE MITCHELL ¦
¦
¦ No. 1356 WDA 2016
Appeal from the Order August 11, 2016
in the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000708-2016
BEFORE: BENDER, P.J.E., BOWES, and STRASSBURGER,* JJ.
CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED: AUGUST 17, 2017
I agree with the Majority that the trial court properly held that the
Commonwealth failed to establish a prima facie case against Ms. Mitchell
regarding possession of the heroin recovered from the car near the driver’s
feet. There is no indication in the record that Ms. Mitchell was even aware of
its presence.
However, I would hold that the evidence, viewed in the light most
favorable to the Commonwealth, was sufficient to allow a finding that Ms.
Mitchell had both the power and intent to control the paraphernalia that was
in plain view next to where she was sitting and that she ultimately handed to
Officer Chiodo. While the evidence certainly does not compel a finding of
guilt, I believe it is sufficient to survive a petition for a writ of habeas corpus.
*Retired Senior Judge assigned to the Superior Court.
J-S390019-17
Compare Commonwealth v. Stembridge, 579 A.2d 901, 905 (Pa. Super.
1990) (holding Commonwealth established that the passenger had
constructive possession of contraband recovered from the ground near the
passenger’s door of a parked vehicle); with Commonwealth v. Hamm,
447 A.2d 960, 962 (Pa. Super. 1982) (holding evidence was insufficient to
establish that driver of car was aware of contraband hidden within it).
Accordingly, I would reverse that portion of the trial court’s order that
dismissed the charges as to the possession of the marijuana paraphernalia.
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