Com. v. Smith, A.

J-S13012-24

2024 PA Super 122

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

ALICIA SMITH : No. 1019 WDA 2023

Appeal from the Order Entered August 10, 2023

In the Court of Common Pleas of Washington County Criminal Division at

No(s): CP-63-CR-0000357-2023

BEFORE: KUNSELMAN, J., BECK, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED: June 10, 2024

The Commonwealth of Pennsylvania appeals the order of the Court of

Common Pleas of Washington County granting in part the petition for writ of

habeas corpus filed by Appellee Alicia Smith. The Commonwealth argues that

the trial court erred in determining that the prosecution failed to present a

prima facie case for several of Appellee’s charges. We reverse the trial court’s

order in part, affirm in part, and remand for further proceedings consistent

with this decision.

Appellee was charged with two counts of possession with intent to

deliver a controlled substance (cocaine and hydrocodone) (“PWID”), two

counts of possession of a controlled substance (cocaine and hydrocodone)

(“simple possession”), and two counts of possession of drug paraphernalia.1

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* Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30), (16), and (32), respectively.

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At Appellee’s preliminary hearing, the following factual background was

developed: on November 18, 2022, Detective David Kimball of the Charleroi

Regional Police Department responded to assist with the execution of a search

warrant issued for the residence at 704 Monongahela Avenue, Charleroi,

Pennsylvania where Appellee resided with Keaundre Crews. Notes of

Testimony (N.T.), Preliminary Hr’g, at 4-5.2

During the search, Detective Kimball entered the sole bedroom in the

residence and inspected a dresser, in which he discovered that the top drawer

contained a “white, hard substance” wrapped in a paper towel. N.T. at 6-7.

Based on his training and experience which included “thousands” of drug

investigations, Detective Kimball believed the substance was cocaine. N.T. at

7, 22. In addition, Detective Kimball found a pill bottle of hydrocodone

prescribed to “Marcus Alums” on the nightstand next to the bed.3 N.T. at 7.

Upon finding the suspected controlled substances, Detective Kimball

stopped the search of the residence to apply for and obtain a narcotics search

warrant. N.T. at 7. Once the narcotics search warrant was granted, Detective

Kimball returned to the residence to resume the search which was authorized

for additional narcotics and drug paraphernalia. N.T. at 7.

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2 Neither the docket nor the transcript from the preliminary hearing indicates

the date when the preliminary hearing was held.

3 On cross-examination, Detective Kimball indicated that he was aware that

Marcus Alums was a real person but did not investigate further into any

possible connections Alums had to Appellee.

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Thereafter, Detective Kimball again examined the bedroom dresser,

seized the suspected cocaine, and also discovered a black digital scale,

multiple plastic sandwich baggies containing white residue, and men’s

clothing. N.T. at 7. In addition, Detective Kimball recovered the hydrocodone

pills from the nightstand which also contained pill bottles prescribed to

Appellee and mail addressed to Appellee. N.T. at 8.

Detective Kimball used a NIK kit to analyze the substance wrapped in

the paper towel and the white residue in the plastic baggies, all of which tested

positive for cocaine. N.T. at 8. The cocaine wrapped in the paper towel was

confirmed by a laboratory to be 4.20 grams of cocaine base (crack cocaine).

N.T. at 9, 26. Detective Kimball testified that he suspected that the amount

of cocaine base was indicative of drug sales, “especially … the hard form [the

cocaine] was in.” N.T. at 9. Detective Kimball also conducted a search of

Appellee’s cell phone, which did not reveal any information relating to illegal

drug activity.

On May 10, 2023, Appellee filed a petition for writ of habeas corpus,

asking that the charges against Appellee be dismissed with prejudice as she

claimed the prosecution failed to present a prima facie case on all charges. At

a July 7, 2023 hearing, the trial court indicated that it would resolve the

petition based on the preliminary hearing transcript and parties’ briefs.

On August 10, 2023, the trial court granted Appellee’s petition in part

by dismissing all the charges against Appellee with the exception of the charge

for simple possession of hydrocodone.

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The Commonwealth filed a timely appeal, certifying that the trial court’s

order granting Appellee’s petition substantially handicaps and/or effectively

terminates prosecution of Appellee on the specified charges. The

Commonwealth complied with the trial court’s direction to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The Commonwealth presents the following issues for our review:

1. When a resident homeowner’s bedroom dresser and

nightstand, both located directly next to the bed, contained

controlled substances; cocaine and hydrocodone, as well as

drug paraphernalia; a scale and plastic baggies with cocaine

substance, is there prima facie evidence, viewing the evidence

and its inferences in the light most favorable to the

Commonwealth, the resident possessed the controlled

substances and drug paraphernalia?

2. When the Defendant possesses controlled substances under a

totality of the circumstances gives rise to a trained and

experienced officer to believe there is intent to distribute the

controlled substances, viewing the evidence and its inferences

in the light most favorable to the Commonwealth, does the

resident possess controlled substances with the intent to

distribute?

Commonwealth’s Brief, at 3.

Our standard of review is as follows:

“In reviewing a trial court's order granting a defendant's petition

for writ of habeas corpus, we must generally consider whether the

record supports the trial court's findings, and whether the

inferences and legal conclusions drawn from those findings are

free from error.” Commonwealth v. Hilliard, 172 A.3d 5, 10

(Pa.Super. 2017) (internal citations and quotation marks

omitted). Further, “the evidentiary sufficiency, or lack thereof, of

the Commonwealth's prima facie case for a charged crime is a

question of law,” and the appellate court's review is plenary.

Commonwealth v. Karetny, 583 Pa. 514, 528, 880 A.2d 505,

513 (2005).

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Commonwealth v. Little, 305 A.3d 38, 43–44 (Pa.Super. 2023).

We are guided by the following principles:

“[t]he purpose of a preliminary hearing is to avoid the

incarceration or trial of a defendant unless there is sufficient

evidence to establish a crime was committed and the probability

the defendant could be connected with the crime.”

Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa.Super.

2004) (internal citation omitted). See also Pa.R.Crim.P. 542(D)

(stating issuing authority shall determine from evidence presented

at preliminary hearing whether there is prima facie case that (1)

offense has been committed; and (2) defendant has committed

it).

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. [T]he

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. Moreover, the weight and

credibility of the evidence are not factors at this stage, and

the Commonwealth need only demonstrate sufficient

probable cause to believe the person charged has

committed the offense. 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. Marti, 779 A.2d 1177, 1180 (Pa.Super.

2001) (internal citations and quotation marks omitted).

Little, 305 A.3d at 45 (emphasis added). “A judge at a preliminary hearing

is not required, nor is he authorized to determine the guilt or innocence of an

accused; his sole function is to determine whether probable cause exists to

require an accused to stand trial on the charges contained in the complaint.”

Commonwealth v. Perez, 249 A.3d 1092, 1102 (Pa. 2021).

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The Commonwealth claims the trial court erred in finding the

prosecution failed to present a prima facie case of simple possession (cocaine),

PWID (cocaine and hydrocodone), and possession of drug paraphernalia

(digital scale and plastic baggies). The offenses of drug possession, PWID,

and possession of drug paraphernalia are defined by statute as follows:

(a) The following acts and the causing thereof within the

Commonwealth are hereby prohibited:

***

(16) Knowingly 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,

or except as otherwise authorized by this act.

***

(30) Except as authorized by this act, the manufacture, delivery,

or possession with intent to manufacture or deliver, a controlled

substance 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.

***

(32) The use of, or possession with intent to use, drug

paraphernalia for the purpose of planting, propagating,

cultivating, growing, harvesting, manufacturing, compounding,

converting, producing, processing, preparing, testing, analyzing,

packing, repacking, storing, containing, concealing, injecting,

ingesting, inhaling or otherwise introducing into the human body

a controlled substance in violation of this act.

35 P.S. §§ 780-113(a)(30), (32).4

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4Drug paraphernalia is defined as including equipment, products, and

materials such as “scales and balances used, intended for use in weighing or

(Footnote Continued Next Page)

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The Commonwealth first asserts that the trial court erred in determining

that the prosecution had not met its burden to show that Appellee possessed

the cocaine and drug paraphernalia found in the residence.

It is well-settled that “in narcotics possession cases, the Commonwealth

may meet its burden by showing actual, constructive, or joint constructive

possession of the contraband.” Commonwealth v. Brockman, 167 A.3d 29,

38 (Pa.Super. 2017) (quoting Commonwealth v. Vargas, 108 A.3d 858, 868

(Pa.Super. 2014) (en banc)). Since investigators in this case did not find the

drugs or drug paraphernalia on Appellee’s person, the Commonwealth sought

to establish that Appellee constructively possessed the cocaine, hydrocodone,

digital scale and plastic baggies.

This Court has defined “constructive possession” as follows:

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)

(quotation omitted). “The Commonwealth may sustain its burden

by means of wholly circumstantial evidence, and we must evaluate

the entire trial record and consider all evidence received against

the defendant.” Id. (citation omitted).

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measuring controlled substances” as well as “containers and other objects use,

intended for use or designed for use in storing or concealing controlled

substances.” 35 P.S. § 780-112.

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Commonwealth v. Roberts, 133 A.3d 759, 767–68 (Pa.Super. 2016).

In Commonwealth v. Macolino, 469 A.2d 132 (Pa. 1983), our

Supreme Court addressed the issue of joint constructive possession and held

that “possession of an illegal substance need not be exclusive; two or more

can possess the same drug at the same time.” Id. at 136. In that case, the

Supreme Court concluded that there was sufficient evidence to show that

contraband and items of drug paraphernalia discovered in the shared bedroom

of a married couple were in the constructive possession of both spouses. The

Supreme Court held that “constructive possession can be found in one

defendant when both the husband and wife have equal access to an area

where the illegal substance or contraband is found.” Id. at 135.

The Supreme Court thereafter clarified that “even absent a marital

relationship[,] constructive possession may be found in either or both actors

if contraband is found in an area of joint control and equal access.”

Commonwealth v. Mudrick, 507 A.2d 1212, 1214 (Pa. 1986). In Mudrick,

the Supreme Court found that the jury could find that cocaine found in a

bedroom shared by two occupants was in an area of joint control and equal

access to both individuals. Id. See also Commonwealth v. Aviles, 615

A.2d 398 (Pa.Super. 1992) (en banc) (concluding there was sufficient

evidence to show that the appellant constructively possessed cocaine, drug

paraphernalia, and large amounts of cash openly accessible to her in two

bedrooms she had rented out to her sister and brother-in-law as the appellant

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had access to the unlocked bedrooms and there was no evidence that

appellant was denied entry to these rooms in her home).

Our review of the certified record demonstrates that the evidence at the

preliminary hearing would allow a factfinder to reasonably conclude that

Appellee constructively possessed the cocaine, hydrocodone, digital scale, and

plastic baggies with drug residue found in the bedroom she shared with Crews.

A factfinder could infer that this was Appellee’s bedroom as there was only

one bedroom in the residence and mail addressed to Appellee was found in

the nightstand next to the bed.

Although the trial court placed emphasis on the fact that the cocaine

and drug paraphernalia was found in a top drawer of a dresser containing only

men’s clothing, there is no evidence in the record that Appellee was denied

access to the dresser which was located in her shared bedroom. Thus, a

factfinder could reasonably infer that Appellee had joint access and control to

the controlled substances and paraphernalia found in her bedroom. Further,

as noted above, Appellee did not appeal the trial court’s finding that the

Commonwealth presented a prima facie case of her possession of the

hydrocodone pills found in the nightstand which also contained Appellee’s

prescription medication and mail addressed to her.

The Commonwealth also argues that the trial court erred in determining

the prosecution failed to establish prima facie cases for the two counts of PWID

as it found insufficient evidence to show Appellee possessed the cocaine and

hydrocodone with intent to deliver.

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To sustain a PWID conviction, “the Commonwealth must prove both the

possession of the controlled substance and the intent to deliver the controlled

substance.” Brockman, 167 A.3d at 38. “In Pennsylvania, the intent to

deliver may be inferred from possession of a large quantity of controlled

substance.” Id. (quoting Commonwealth v. Lee, 956 A.2d 1024, 1028

(Pa.Super. 2008)). Where the quantity of the controlled substance is not

dispositive as to the intent, the court may also look to other factors, such as

“the manner in which the controlled substance was packaged, the behavior of

the defendant, the presence of drug paraphernalia, and the sums of cash

found in possession of the defendant.” Brockman, 167 A.3d at 39 (quoting

Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa. 2007)).

In this case, we agree with the Commonwealth that the evidence at the

preliminary hearing did present a prima facie case that Appellee possessed

the cocaine with intent to deliver. The cocaine was found in Appellee’s

bedroom along with a digital scale and plastic baggies, which are items of drug

paraphernalia used in the preparation and packaging of drugs for distribution.

In addition, Detective Kimball, an investigator who conducted thousands of

drug investigations, testified that he believed through his training and

experience that the “the [hard] form [the cocaine] was in, it would be

indicative of drug sales.” N.T. at 9.

While the trial court suggested that the fact that the plastic baggies

contained cocaine residue was more indicative of personal use than drug

distribution, we remind the trial court that the weight of the evidence is not a

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factor in determining whether the Commonwealth established a prima facie

case that would allow the case to be heard by a jury. The trial court failed to

draw all reasonable inferences from the evidence that would support a guilty

verdict. Viewing the evidence in the light most favorable to the

Commonwealth, the prosecution presented probable cause to support an

inference that Appellee possessed the cocaine with intent to deliver.

Although we reverse the trial court’s decision to dismiss the PWID

charge with respect to the cocaine, we are unpersuaded by the

Commonwealth’s allegation that the trial court erred in finding the prosecution

failed to establish a prima facie case for the charge of PWID with respect to

the hydrocodone. As noted above, investigators recovered hydrocodone pills

prescribed to “Marcus Alums” in a nightstand in Appellee’s bedroom.

Although the trial court found the prosecution had presented sufficient

evidence to demonstrate that Appellee possessed the hydrocodone pills, the

trial court emphasized that the record contained insufficient evidence to

support an inference that Appellee intended to distribute the pills. The trial

court emphasized that the prosecution had not presented any evidence to

show the quantity of hydrocodone pills in Appellee’s possession. The trial

court also indicated that there was no indication that the pills were divided up

into smaller quantities for the purpose of distribution or in any packaging that

was typically found in the distribution of hydrocodone. The trial court pointed

out that there was no drug paraphernalia found that was even remotely

associated with the distribution of hydrocodone. As noted above, the trial

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court determined that the drug paraphernalia (scale and baggies) discovered

in the dresser alongside the cocaine was not possessed by Appellee.

On appeal, the Commonwealth failed to offer any argument or analysis

as to why the trial court erred in finding that the prosecution did not meet its

burden to show Appellee possessed the hydrocodone with intent to deliver.

Given the Commonwealth’s lack of advocacy on this point, we find this

particular issue to be waived and decline to address it further. See

Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa.Super. 2017) (“[i]t is

well-established that when issues are not properly raised and developed in

briefs, when the briefs are wholly inadequate to present specific issues for

review, a court will not consider the merits thereof”) (internal quotation marks

and brackets omitted).

Accordingly, we conclude that the trial court erred in determining that

the prosecution failed to establish a prima facie case for PWID (cocaine),

simple possession of a controlled substance (cocaine), and two counts of

possession of drug paraphernalia.5 However, we affirm the trial court’s

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5 Nevertheless, while the evidence presented at the preliminary hearing

constituted a prima facie case of guilt on these charges, we remind the

Commonwealth in order to sustain convictions for the offenses, the

prosecution has the burden to prove these charges beyond a reasonable

doubt. Perez, 249 A.3d at 1102 (noting that while “[a]n offense on which the

Commonwealth has met its burden [of showing a prima facie case] will be

“held over” for trial, at the trial, of course, the Commonwealth's burden is to

establish guilt beyond a reasonable doubt”).

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determination that the Commonwealth failed to establish a prima facie case

for PWID (hydrocodone).

Accordingly, we reverse the trial court’s order in part, affirm in part, and

remand for further proceedings, including the reinstatement of charges

against Appellee.

Order reversed in part, affirmed in part. Case remanded. Jurisdiction

relinquished.

DATE: 06/10/2024

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