Com. v. Ros, J.

J-A13033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JARENNY ROS :
:
Appellee : No. 1393 EDA 2021
Appeal from the Order Entered June 24, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002778-2021
BEFORE: OLSON, J., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JULY 07, 2022
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Philadelphia County Court of Common Pleas, which granted the
motion to quash the bill of information filed by Appellee, Jarenny Ros, and
dismissed the charges brought against Appellee. We reverse and remand.
The trial court set forth the relevant facts of this appeal as follows:
Philadelphia Police Officer Jonathan Arch testified that, in
the early hours of May 31, 2020, he received a radio call for
a burglary in progress at a shopping center located at 3000
Island Avenue in the city and county of Philadelphia. Officer
Arch arrived at that location at approximately 2:45 a.m.,
where he observed a white Nissan Altima, which did not
have a license plate, speeding through the shopping plaza.
The vehicle hit a curb and became disabled, at which time a
male, alleged to be Zahir Smith … exited from the driver
side door. Subsequently, one female, alleged to be Julisa
Prak … exited the front passenger door, and another
woman, alleged to be [Appellee], fled from the rear of the
vehicle. The officer ordered [Appellee] to stop, and placed
her in custody in the back of his patrol car. Officer Arch
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testified that he observed that the windows and doors of the
Snipes store at the shopping center were all broken, and
that he observed clothing and sneakers in and around the
white Altima. On cross examination, Officer Arch stated that
there was a riot taking place in the shopping center at the
time he encountered the defendants, and that many people
were looting stores in that location. He further testified that
he did not see the white Altima or the defendants
themselves near the Snipes store, that there are several
stores in the shopping center in question, and that many of
those stores also appeared to have been looted. The officer
positively identified all three defendants as the individuals
he encountered fleeing the white Altima.
Philadelphia Police Detective Francesco Campbell testified
that on the date in question, he executed a search warrant
on the vehicle. Inside was a large amount of merchandise
from the Snipes store. He indicated that he knew it was
from Snipes because a store employee identified the
merchandise from its tags, and estimated its value in the
thousands of dollars. Officers also recovered a firearm from
underneath the merchandise. As a result of this incident,
all three codefendants were arrested and charged with
burglary, multiple violations of the Uniform Firearms Act
[(“VUFA”)], and related charges.
(Trial Court Opinion, filed 9/7/21, at 1-2).
On April 8, 2021, the court conducted a preliminary hearing, and
Appellee and her co-defendants’ cases were held for court. On April 20, 2021,
the Commonwealth filed a criminal information charging Appellee with
burglary, criminal trespass, theft by unlawful taking, receiving stolen property,
conspiracy, VUFA, and possessing an instrument of crime (“PIC”). Appellee
filed a “motion to quash bills of information” on May 12, 2021. In the motion,
Appellee asserted that “there is no evidence [Appellee] was involved with the
burglary or participated in the conspiracy. There is also no evidence of
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dominion or control over [or] knowledge of the firearm.” (Motion, filed
5/12/21, at ¶3).
On June 24, 2021, the court conducted a hearing regarding Appellee’s
pretrial motion. That same day, the court granted Appellee’s motion and
dismissed all charges. Specifically, the court held that the Commonwealth
had failed to make a prima facie case with respect to all charges against
Appellee. The Commonwealth timely filed a notice of appeal on July 8, 2021.
On July 21, 2021, the court ordered the Commonwealth to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. The
Commonwealth timely filed its Rule 1925(b) statement on July 26, 2021.
The Commonwealth now raises one issue for our review:
Did sufficient evidence support a prima facie case for the
charges of burglary, criminal trespass, conspiracy, theft by
unlawful taking, receiving stolen property, [VUFA], and
[PIC], where [Appellee] and her two co-defendants were
observed fleeing the scene of the crime, a Snipes retail
store; the windows to the store had been broken; goods
belonging to the store were found scattered throughout the
car [Appellee] fled from; and a gun was found in the back
seat underneath the stolen goods?
(Commonwealth’s Brief at 6).
The following principles apply to this Court’s review of an order granting
a pretrial petition for writ of habeas corpus:
We review a decision to grant a pre-trial petition for a writ
of habeas corpus by examining the evidence and reasonable
inferences derived therefrom in a light most favorable to the
Commonwealth. Whether the Commonwealth satisfied its
burden of establishing a prima facie case for each charged
crime is a question of law, to which this Court’s standard of
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review is de novo and our scope of review is plenary.
A pre-trial habeas corpus motion is the proper means for
testing whether the Commonwealth has sufficient evidence
to establish a prima facie case. To demonstrate that a prima
facie case exists, the Commonwealth must produce
evidence of every material element of the charged
offense(s) as well as the defendant’s complicity therein. To
meet its burden, the Commonwealth may utilize the
evidence presented at the preliminary hearing and also may
submit additional proof.
Commonwealth v. Wyatt, 203 A.3d 1115, 1117 (Pa.Super. 2019) (internal
citations and quotation marks omitted).
“The Commonwealth establishes a prima facie case when it produces
evidence that, if accepted as true, would warrant the trial judge to allow the
case to go to a jury.” Commonwealth v. Ouch, 199 A.3d 918, 923
(Pa.Super. 2018) (emphasis in original). “The Commonwealth need not prove
the elements of the crime beyond a reasonable doubt; rather, the prima facie
standard requires evidence of the existence of each and every element of the
crime charged.” Id.On appeal, the Commonwealth argues that the facts established at
Appellee’s preliminary hearing “permitted a reasonable inference that
[Appellee] unlawfully entered the Snipes store and participated with her two
companions in stealing the merchandise.” (Commonwealth’s Brief at 15).
Further, the Commonwealth asserts that this evidence “supported an
inference that [Appellee] had knowledge of the gun, had the power to exercise
control of the gun, and … had constructive possession of the gun.” (Id. at
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17). The Commonwealth insists that it established a prima facie case for all
the charges against Appellee. The Commonwealth concludes that this Court
must reverse the order granting Appellee’s pretrial motion. We agree.
The Pennsylvania Crimes Code defines burglary in relevant part as
follows:
§ 3502. Burglary
(a) Offense defined.—A person commits the offense
of burglary if, with the intent to commit a crime therein, the
person:
* * *
(4) enters a building or occupied structure, or
separately secured or occupied portion thereof that is not
adapted for overnight accommodations in which at the
time of the offense no person is present.
18 Pa.C.S.A. § 3502(a)(4).
The Pennsylvania Crimes Code defines criminal trespass in relevant part
as follows:
§ 3503. Criminal trespass
(a) Buildings and occupied structures.—
(1) A person commits an offense if, knowing that
he is not licensed or privileged to do so, he:
* * *
(ii) breaks into any building or occupied
structure or separately secured or occupied portion
thereof.
18 Pa.C.S.A. § 3503(a)(1)(ii).
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The Pennsylvania Crimes Code defines theft by unlawful taking or
disposition in relevant part as follows:
§ 3921. Theft by unlawful taking or disposition
(a) Movable property.—A person is guilty of theft if
he unlawfully takes, or exercises unlawful control over,
moveable property of another with intent to deprive him
thereof.
18 Pa.C.S.A. § 3921(a). The Crimes Code defines “movable property” as:
Property the location of which can be changed, including
things growing on, affixed to, or found in land, and
documents although the rights represented thereby have no
physical location. “Immovable property” is all other
property.
18 Pa.C.S.A. § 3901. “Deprivation” occurs if a person: (1) “withhold[s]
property of another permanently”; or (2) “dispose[s] of the property so as to
make it unlikely that the owner will recover it.” Id.
The Crimes Code defines the offense of receiving stolen property as
follows:
§ 3925. Receiving stolen property
(a) Offense defined.—A person is guilty of theft if he
intentionally receives, retains, or disposes of movable
property of another knowing that it has been stolen, or
believing that is has probably been stolen, unless the
property is received, retained, or disposed with intent to
restore it to the owner.
18 Pa.C.S.A. § 3925(a). “[T]o establish the mens rea element of the crime of
receiving stolen property, the Commonwealth must prove that the accused
possessed property with ‘guilty knowledge,’ i.e., knowing that it has been
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stolen, or believing that it has probably been stolen.” Commonwealth v.
Newton, 994 A.2d 1127,1132-33 (Pa.Super. 2010). “A person ‘knows’ that
goods are stolen if he is ‘aware’ of that fact.” Id. at 1132. Regarding the
latter part of the test, “it is clear that [the statute] is designed to criminalize
situations where the defendant does not know for certain that the goods are
stolen, but nevertheless has: (1) considered the possibility that the goods are
stolen and (2) concluded that the answer is at the very least, ‘probably.’” Id.The Pennsylvania Crimes Code defines the offense of PIC as follows:
§ 907. Possessing instruments of crime
(a) Criminal instruments generally.—A person
commits a misdemeanor of the first degree if he possesses
any instrument of crime with intent to employ it criminally.
* * *
(d) Definitions.—As used in this section, the following
words and phrases shall have the meanings given to them
in this subsection:
* * *
“Instrument of crime.” Any of the following:
(1) Anything specially made or specially adapted
for criminal use.
(2) Anything used for criminal purposes and
possessed by the actor under circumstances not
manifestly appropriate for lawful uses it may have.
18 Pa.C.S.A. § 907(a), (d).
The Crimes Code defines the offense of criminal conspiracy as follows:
§ 903. Criminal conspiracy
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(a) Definition of conspiracy.—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:
(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.
* * *
(c) Conspiracy with multiple criminal
objectives.—If a person conspires to commit a number of
crimes, he is guilty of only one conspiracy so long as such
multiple crimes are the object of the same agreement or
continuous conspiratorial relationship.
18 Pa.C.S.A. § 903(a), (c).
“To sustain a conviction for criminal conspiracy, the Commonwealth
must establish that the defendant (1) entered into an agreement to commit
or aid in an unlawful act with another person or persons, (2) with a shared
criminal intent, and (3) an overt act was done in furtherance of the
conspiracy.” Commonwealth v. Melvin, 103 A.3d 1, 42 (Pa.Super. 2014)
(citation omitted).
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a
particular criminal objective be accomplished. Therefore, a
conviction for conspiracy requires proof of the existence of
a shared criminal intent. An explicit or formal agreement to
commit crimes can seldom, if ever, be proved and it need
not be, for proof of a criminal partnership is almost
invariably extracted from the circumstances that attend its
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activities. Thus, a conspiracy may be inferred where it is
demonstrated that the relation, conduct, or circumstances
of the parties, and the overt acts of the co-conspirators
sufficiently prove the formation of a criminal confederation.
The conduct of the parties and the circumstances
surrounding their conduct may create a web of evidence
linking the accused to the alleged conspiracy beyond a
reasonable doubt.
Id. at 42-43. “Once the trier of fact finds that there was an agreement and
the defendant intentionally entered into the agreement, that defendant may
be liable for the overt acts committed in furtherance of the conspiracy
regardless of which co-conspirator committed the act.” Commonwealth v.
Barnes, 871 A.2d 812, 820 (Pa.Super. 2005), aff’d, 592 Pa. 301, 924 A.2d
1202 (2007).
Further, the Uniform Firearms Act provides, in relevant part, as follows:
§ 6106. Firearms not to be carried without a license
(a) Offense defined.—
(1) Except as provided in paragraph (2), any
person who carries a firearm in any vehicle or any person
who carries a firearm concealed on or about his person,
except in his place of abode or fixed place of business,
without a valid and lawfully issued license under this
chapter commits a felony of the third degree.
* * *
§ 6107. Prohibited conduct during emergency
(a) General rule.—No person shall carry a firearm
upon the public streets or upon any public property during
an emergency proclaimed by a State or municipal
governmental executive unless that person is:
(1) Actively engaged in a defense of that person’s
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life or property from peril or threat.
(2) Licensed to carry firearms under section 6109
(relating to licenses) or is exempt from licensing under
section 6106(b) (relating to firearms not to be carried
without a license).
* * *
§ 6108. Carrying firearms on public streets or public
property in Philadelphia
No person shall carry a firearm, rifle or shotgun at any
time upon the public streets or upon any public property in
a city of the first class unless:
(1) such person is licensed to carry a firearm; or
(2) such person is exempt from licensing under section
6106(b) of this title (relating to firearms not to be carried
without a license).
18 Pa.C.S.A. §§ 6106(a)(1), 6107(a), and 6108.
“When contraband is not found on the defendant’s person, the
Commonwealth must establish constructive possession….” Commonwealth
v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005). “We have defined
constructive possession as conscious dominion, meaning that the defendant
has the power to control the contraband and the intent to exercise that
control.” Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa.Super. 2018),
appeal denied, 651 Pa. 10, 202 A.3d 42 (2019) (internal quotation marks
omitted). “The intent to exercise conscious dominion can be inferred from the
totality of the circumstances.” Jones, supra at 121. “Constructive
possession may be found in one or more actors where the item in issue is in
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an area of joint control and equal access.” Commonwealth v. Valette, 531
Pa. 384, 388, 613 A.2d 548, 550 (1992).
It is well established that, as with any other element of a
crime, constructive possession may be proven by
circumstantial evidence. In other words, the
Commonwealth must establish facts from which the trier of
fact can reasonably infer that the defendant exercised
dominion and control over the contraband at issue.
Parrish, supra at 36-37 (internal citations and quotation marks omitted).
Instantly, Officer Arch arrived at the scene in response to a burglary
call. (See N.T. Preliminary Hearing, 4/8/21, at 6). Upon arrival, the officer
observed a Nissan Altima speed through the shopping plaza and hit a curb.
(Id.) Appellee and her co-defendants exited the Nissan and fled. (Id. at 7).
After a brief chase, the officer apprehended Appellee, who subsequently
identified herself. (Id. at 7, 10). At the preliminary hearing, Officer Arch
made an in-court identification of Appellee and her co-defendants. (Id. at 5).
Regarding the charge of burglary and the related offenses, Officer Arch
testified that Appellee and her co-defendants were approximately one hundred
yards away from the Snipes store when they began to flee. (Id. at 10). The
officer observed that the store’s windows and doors were broken. (Id. at 8).
Police later recovered “thousands” of dollars’ worth of clothes belonging to the
Snipes store “in and around” the Nissan. (Id. at 8, 26). Under these
circumstances, the Commonwealth established a prima facie case for burglary
and the related offenses. See Wyatt, supra.
Regarding the conspiracy charge, Appellee and her co-defendants fled
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from a vehicle containing stolen merchandise and a firearm. Although the
Commonwealth did not present evidence of an explicit agreement between
Appellee and her co-defendants, their conduct and circumstances made it
reasonable to infer the existence of a shared criminal intent. See Melvin,
supra. Taken together, these facts established a prima facie case for
conspiracy. See Wyatt, supra.
Regarding the PIC charge, police recovered a firearm from the backseat
of the Nissan. (See N.T. Preliminary Hearing at 21). Specifically, the firearm
was underneath merchandise from the Snipes store. (Id.) Since Appellee
exited the Nissan from the backseat, it is reasonable to infer that Appellee
could have exercised conscious dominion over the firearm. See Parrish,
supra. Therefore, the Commonwealth established a prima facie case for PIC
under the theory of constructive possession. See Wyatt, supra.
As for the VUFA charges, Officer Arch testified that his interaction with
Appellee and her co-defendants occurred during a “riot” in the midst of a
COVID-19-related “shut down” in Philadelphia. (See N.T. Preliminary Hearing
at 12, 14). Detective Campbell added that Appellee did not have a license to
carry a firearm. (Id. at 22). Like the PIC charge, Appellee’s proximity to the
firearm made it reasonable to infer that she had the ability to exercise control
over the firearm while in the vehicle. See Parrish, supra. Based on these
facts, the Commonwealth presented sufficient evidence to establish a prima
facie case for the VUFA charges. See Wyatt, supra.
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Our review of the testimony produced at the preliminary hearing, viewed
in the light most favorable to the Commonwealth, leads us to conclude that
the Commonwealth presented sufficient evidence to establish a prima facie
case as to all charges filed against Appellee. See Wyatt, supra; Ouch,
supra. Accordingly, we reverse the order granting Appellee habeas corpus
relief, and we remand this case for further proceedings consistent with this
decision.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2022
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