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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROBERT KEVIN COOK : No. 1628 WDA 2019
Appeal from the Order Entered October 9, 2019
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0000899-2019
BEFORE: BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 22, 2020
The Commonwealth of Pennsylvania appeals from the Order entered in
the Court of Common Pleas of Beaver County on October 9, 2019, granting
Appellee Robert Kevin Cook’s motion for habeas corpus relief for lack of prima
facie evidence with regard to charges of possession with intent to deliver a
controlled substance and conspiracy to commit possession with intent to
deliver a controlled substance.1 These charges stemmed from the execution
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*Former Justice specially assigned to the Superior Court.
1 The Commonwealth refers to the aforementioned charges as Counts 3 and
4 respectively; however, the trial court denied Appellee’s petition for habeas
corpus in regard to Count 4, which it listed as Intentional Possession of a
Controlled Substance. See Opinion and Order, 10/9/19, at 5.
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of a search warrant on February 1, 2019. Following a careful review, we
reverse and remand for further proceedings.2
Our review of the certified record reveals that following an investigation
of three individuals: Donald Williams, Jeremiah Irving, Appellee, Trooper
Joshua Fachet obtained and executed a search warrant for the area of 4600
4th Avenue, Apartments 3 and 4, in Beaver Falls, Pennsylvania. At the
Preliminary Hearing held on April 30, 2019, Trooper Fachet testified that upon
entering Apartment 4 after executing that warrant on February 1, 2019, the
Pennsylvania SERT team located several individuals. N.T. Preliminary
Hearing, 4/30/19, at 8. When he ultimately arrived, Trooper Fachet observed
several individuals in the dining room; Although the Pennsylvania State Police
Special Emergency Response Team (SERT) already had taken Appellee from
the scene, Trooper Fachet learned Appellee and Irving had been found in the
dining room, and Williams was lying in the doorway between the dining room
and kitchen. Id. at 9, 12.
A Vice Unit police officer on the scene notified Trooper Fachet that two,
clear, knotted baggies, one of which contained suspected crack cocaine and
the other of which contained two baggies of a white, powdery substance that
was believed to be cocaine, were found in the toilet. Id. at 10. Trooper Fachet
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2 The Commonwealth has perfected its interlocutory appeal from the Order
granting Appellee’s suppression motion in that its notice of appeal contains
the requisite statement certifying that the Order would “substantially handicap
the prosecution” pursuant to Pa.R.A.P. 311(d) and 904(e).
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estimated a total amount of two to three ounces of cocaine was contained in
the baggies. Id.
On the kitchen countertop, Trooper Fachet observed a Pyrex cup and
baking soda along with a stainless steel knife stained with white residue. In
Trooper Fachet’s experience, such items are used to make crack cocaine. Id.
at 11. A scale with a small piece of a white chunky substance on it was found
near Appellee and Irving in the dining room. Id. In addition to a stolen
handgun found in the living room, Trooper Fachet recovered $1,700 from
Irving and $1,800 from Williams. Id. at 12.
In the only bedroom of the home, Trooper Fachet observed a small,
knotted baggie containing suspected crack cocaine and a crack pipe in the top,
right dresser drawer. Id. at 13. Also therein were items bearing Appellee’s
name and the address of the apartment. Id.
Trooper Fachet filed a criminal complaint on February 1, 2019, charging
Appellee with the following five counts: Receiving Stolen Property; Conspiracy
to Commit Receiving Stolen Property; Possession with Intent to Deliver;
Conspiracy to Commit Possession with Intent to Deliver; and Possession. On
June 10, 2019, the Commonwealth filed a criminal information charging
Appellee with the same five counts. On July 19, 2019, Appellee filed a
counselled Omnibus Pre-Trial Motion for Relief wherein he requested a grant
of habeas corpus due to a lack of sufficient evidence.
On October 1, 2019, the trial court held a Pre-Trial hearing at which
time Trooper Fachet provided additional testimony. Specifically, he explained
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that surveillance at 4600, 4th Avenue, Apartment 4 identified Irving entering
and exiting the residence, and photographs of him were taken on January 22-
23, 2019. N.T. 10/1/19, at 9-10. Also, the search of the apartment revealed
a court document and a shipping label bearing Appellee’s name and the
Apartment 4 address. Id. at 12. In fact, while detained, Appellee admitted
he resided in the apartment. Id. at 13.
Trooper Fachet also commented upon the approximately $1700 and
$1800 found on Irving and Williams respectively. In doing so, he noted that
based upon his training and experience “individuals will allow dealers or drug
traffickers to utilize their apartment for many reasons, for payment or also
through controlled substances, various reasons, so it’s not unusual that the
owner of the residence is not holding a lot of money.” Id. at 38.
In its October 9, 2019, Order the trial court granted, in part, Appellee’s
suppression motion. The Commonwealth filed a timely notice of appeal on
November 1, 2019. Although the trial court did not direct the Commonwealth
to file a concise statement of the matters complained of on appeal pursuant
to Pa.R.A.P. 1925(b), the trial court filed a Rule 1925(a) Opinion on October
9, 2019.
In its appellate brief, the Commonwealth presents the following question
for our review:
Whether the trial court erred in ruling that the evidence was
insufficient for a prima facie case at to possession with intent to
deliver and conspiracy to commit [sic] possession with intent to
deliver.
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Brief of Appellant at 7.
The Commonwealth argues the trial court erred in finding Appellee
lacked the requisite control of the contraband to establish possession
because other occupants also were present in the apartment, for the
fact that additional individuals were there at the time of the execution
of the search warrant is not dispositive of whether Appellee had
constructive possession of the contraband. Brief of Appellant at 19. In
addition, the Commonwealth urges that the quantity of drugs police
discovered in the apartment was sufficient to establish a prima facie
case of possession with intent to deliver the same. Id. at 21-23. The
Commonwealth further posits that in light of existing caselaw, at a
minimum, the evidence established Appellee had a shared criminal
intent with his cohorts to commit possession with intent to deliver. Id.
at 26.
At the outset, we recognize:
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. A trial court may grant a defendant’s petition for
writ [of] habeas corpus after a preliminary hearing where the
Commonwealth has failed to present a prima facie case against
the defendant.
Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa.Super. 2017) (quotation
marks and citations omitted). Further:
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The evidentiary sufficiency of the Commonwealth’s case, or lack
thereof, is a question of law; as such, our scope of review is
plenary. Commonwealth v. Karetny, [ ] 880 A.2d 505, 528 (
[Pa.] 2005). We have previously described the well-settled
principles governing preliminary hearings, as well as the
Commonwealth’s concomitant burden, as follows:
The purpose of a preliminary hearing is to
determine whether the Commonwealth has made out a
prima facie case for the offenses charged. 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.
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. 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.
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
that the person charged has committed the offense.
Commonwealth v. Ouch, 199 A.3d 918, 923 (Pa. Super. 2018)
[ ].
Commonwealth v. Perez, 220 A.3d 1069, 1075 (Pa.Super. 2019) (en banc)
(emphasis and footnote omitted), appeal granted on other grounds, March 2,
2020.
Furthermore, “[t]o 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.”
Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016)
(citation omitted). The Commonwealth may sustain its burden of proving
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every element of the crime(s) by means of wholly circumstantial evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011). However,
“we have also noted that suspicion and conjecture are not evidence and are
unacceptable as such.” Commonwealth v. Holston, 211 A.3d 1264, 1269
(Pa.Super. 2019) (en banc) (citation omitted). “Where the Commonwealth’s
case relies solely upon a tenuous inference to establish a material element
of the charge, it has failed to meet its burden of showing that the crime
charged was committed.” Id. (citation omitted, emphasis in original). “To
meet its burden, the Commonwealth may utilize the evidence presented at
the preliminary hearing and also may submit additional proof.” Dantzler, 135
A.3d at 1112 (citation omitted).
The Crimes Code defines Possession with Intent to Deliver (PWID) as
follows:
Except as authorized by this act, 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 licenses 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). This Court has explained the evidence necessary
to sustain a PWID conviction under 35 P.S. § 780-113(a)(30) as follows:
The Commonwealth establishes the offense of [PWID] when
it proves beyond a reasonable doubt that the defendant possessed
a controlled substance with the intent to deliver it.
To determine whether the Commonwealth presented
sufficient evidence to sustain [a defendant’s] conviction for
[PWID], all of the facts and circumstances surrounding the
possession are relevant and the elements of the crime may be
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established by circumstantial evidence. Furthermore, possession
with intent to deliver can be inferred from the quantity of the
drugs possessed along with the other surrounding circumstances.
Commonwealth v. Little, 879 A.2d 293, 297 (Pa.Super. 2005) (internal
citations omitted).
Possession may be proved “by showing actual possession,
constructive possession, or joint constructive possession.”
Commonwealth v. Hall, 199 A.3d 954, 960 (Pa.Super. 2018).
Constructive possession is the ability to exercise a conscious
dominion over the contraband. It usually comes into play when
police find contraband somewhere other than on the defendant's
person. Constructive possession requires proof that the defendant
had knowledge of the existence and location of the item. The
Commonwealth may prove such knowledge circumstantially. That
is, it may prove that the defendant had knowledge of the existence
and location of the items at issue from examination of the totality
of the circumstances surrounding the case, such as whether the
contraband was located in an area usually accessible only to the
defendant.
For the Commonwealth to prove constructive possession
where more than one person has access to the contraband, the
Commonwealth must introduce evidence demonstrating either the
defendant’s participation in the drug-related activity or evidence
connecting the defendant to the specific room or areas where the
drugs were kept.
Id. at 961 (cleaned up).
In addition, Conspiracy requires:
A person is guilty of conspiracy with another person 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.
18 Pa.C.S.A. § 903(a).
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In its Opinion, the trial court provides the following, brief rationale in
support of its finding that the evidence has been legally insufficient to show
PWID or conspiracy to PWID:
“Factors in determining whether a defendant intended to deliver a
controlled substance include the manner in which the controlled
substance was packaged, the behavior of the defendant, the
presence of drug paraphernalia, and large sums of cash found in
possession of the defendant.” Commonwealth v. Sherrell, 607
A.2d 767, 769 (Pa.Super. 1992). Trooper Fachet stated that the
crack cocaine found in [Appellee’s] dresser was an amount
packaged that is commonly used for personal use and that no
money was found on [Appellee] at the time of the search. PHT,
33, 30. “The quantity of the controlled substance is but one factor
that courts look to in analyzing whether a defendant had the
necessary intent to deliver a controlled substance.
Commonwealth v. Pagan, 461 A.2d 321, 322 (Pa.Super. 1983). A
scale was found near [Appellee] and the scale had less than a
gram of residue on it. PHT, 17, 33. Possession of a small quantity
of drugs, by itself, will not establish possession with intent to
deliver…” Commonwealth v. Smagala, 383 Pa.Super. 466, 557
A.2d 347 (1989). There has been nothing further provided and
based on the above reasoning, [Appellee’s] Petition for Habeas
Corpus in regards to not only Count 3, but also allegations of
Conspiracy to PWID, is GRANTED.
Trial Court Opinion, filed 10/9/19, at 4 (emphasis in original). Following our
review of the record, we disagree.
As stated previously, when executing a search warrant at 4600 4th
Avenue Apartment 4, police observed Appellee in the dining room with Irving
and Williams. A scale with suspected cocaine on top was located on the dining
room table, and two to three ounces of cocaine were found in a nearby toilet.
In addition to Appellee’s own admission that he resided there, police
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discovered a court document and packing slip bearing his name in the only
bedroom in the apartment.
In light of this evidence viewed in a light most favorable to the
Commonwealth and under the totality of the circumstances, we agree with the
Commonwealth that “[i]t cannot be argued that [Appellee] was merely present
in the apartment and didn’t have the requisite control because there were
other occupants in the apartment.” Appellant’s Brief at 19. To the contrary,
we find that, at a minimum, such evidence establishes a prima facie case for
the constructive and joint possession of the contraband found in the dining
room, kitchen and toilet. See Little, supra. Accord Hall, supra at 961-62
(holding evidence was sufficient to establish constructive possession where
police recovered drugs, scales, packaging material, and defendant’s
documents in a one-bedroom apartment).
The same holds true with regard to the possession with intent to deliver
charge. In reaching its conclusion, the trial court disregarded the two to three
grams of cocaine found in the toilet in Appellee’s apartment and considered
only the quantity of drugs found in the dresser drawer and on the scale.
However, this evidence, along with the scale and other manufacturing
materials found in the kitchen, the large quantity of cash discovered on Irving
and Williams, and the proof of Appellee’s residency, establish a prima facie
case that Appellee constructively possessed a quantity of cocaine with an
intent to deliver the same. Id.
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Finally, the trial court’s analysis is essentially devoid of any discussion
pertaining to whether or not a conspiracy existed between Appellee and his
codefendants. However, from the aforementioned web of evidence, viewed
in the light most favorable to the Commonwealth, we find the Commonwealth
established a prima facie case that Appellee, Irving and Williams had a shared
criminal intent to sell the cocaine over which the three men exercised
conscious dominion and control.
Prior to the execution of the search warrant, police observed Irving
entering and exiting numerous areas of the apartment building as well as
Appellee’s residence. When officers entered Apartment 4, Appellee’s admitted
residence, Irving, Williams and he were found in the same room and in close
proximity to the drugs and other contraband. Although Appellee did not have
a large sum of cash on his person, Trooper Fachet explained that in his training
and experience he had learned that an individual often allows a drug dealer to
utilize his or her apartment to further the illegal enterprise. This circumstantial
evidence establishes, at a minimum, that the Commonwealth put forth a prima
facie case of conspiracy to commit possession with intent to deliver. See
Commonwealth v. Jones, 874 A.2d 108, 122 (Pa.Super. 2005) (ruling
circumstantial evidence of relationship with other occupant of a vehicle and
joint access to contraband was sufficient to sustain conspiracy conviction).
Accordingly, we reverse the Order granting Appellee habeas corpus
relief and remand for trial.
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Order Reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/2020
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