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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2017
The Commonwealth appeals from the August 11, 2016 order granting
Ladaya Da Shae Mitchell’s motion for writ of habeas corpus, and dismissing
without prejudice misdemeanor charges of possession of heroin and drug
paraphernalia. We affirm.
Initially, Ms. Mitchell was charged with conspiracy and possession of
heroin with intent to distribute (“PWID”), both felonies, together with
possession of heroin and drug paraphernalia, misdemeanors, and summary
disorderly conduct. The facts giving rise to the charges were summarized by
the trial court as follows.
On April 7, 2016, officer Ryan Chiodo (Chiodo) of the
Johnstown Police Department was on patrol and issuing parking
citations on Coleman Avenue in the Moxham area of Johnstown.
Chiodo testified that Coleman Avenue is a dead [end] street and
* Retired Senior Judge assigned to the Superior Court.
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that he observed a vehicle running with its headlights off and
parking lights on parked on the side of the road where parking is
not permitted. Chiodo observed two occupants and approached
the vehicle from the passenger’s side due to a steep hill on the
driver’s side. The passenger, Mitchell, rolled down the window
and Chiodo engaged her and the driver, later identified as Abdul
Kirk (Kirk) in conversation. Chiodo asked Mitchell if everything
was okay, she indicated it was, that Kirk had given her a ride
home from a nearby Sheetz convenience store, that they were
now just talking, and that she lived just up the hill.
Chiodo observed that Mitchell and Kirk appeared to be
under 18 years old and asked for identification. Neither was able
to provide ID but both gave Chiodo their names and dates of
birth that he radioed in to dispatch to confirm. During the
course of the conversation[,] Chiodo observed an open foil
container of flavored cigars in the storage pocket on the
passenger side front door near Mitchell. Chiodo asked Mitchell
whom they belonged to and she said they weren’t hers and she
did not know whose they were. Mitchell then reached for the
package just as Chiodo was reaching for it and handed it to him.
Chiodo looked into the package and observed two hand rolled
cigarettes that he suspected to be marijuana joints.
At this time[,] Kirk exited the vehicle and began walking
around the front of it where Chiodo stopped him and conducted
a pat down for officer safety. Finding nothing suspicious or
dangerous, Chiodo again radioed dispatch seeking to confirm the
information provided by Mitchell and Kirk as well as to identify
the owner of the vehicle since Kirk was only able to say it
belonged to a friend whose name he couldn’t remember. While
waiting for further information Chiodo asked Mitchell to step out
of the vehicle[,] which she did[,] and he conducted a pat down
of her for his safety and found nothing suspicious. Following this
the dispatcher radioed Chiodo confirming the information
provided by Kirk and Mitchell and indicating that there were no
active warrants on either but was unable to identify the vehicle
owner due to computer issues.
Officers Robertson and Plunkard arrived at the scene and
while they monitored Kirk and Mitchell, Chiodo started to search
the vehicle. On the driver’s side floor he found a candy box that
he opened and in which he saw 100-150 stamp bags of
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suspected heroin. At this time[,] Kirk fled the scene on foot and
was pursued by officers Robertson and Plunkard who were
unable to locate Kirk. Chiodo placed Mitchell in handcuffs and
then in the back of his cruiser[,] eventually transporting her to
the Johnstown Public Safety Building for processing.
Trial Court Opinion, 8/11/16, at 1-3.
At the April 13, 2016 preliminary hearing, the district justice dismissed
counts one (PWID) and four (conspiracy), finding no evidence of an overt act
to support conspiracy of possession with intent to deliver. N.T. Preliminary
Hearing, 4/13/16, at 38. The district justice held over the remaining counts.
On July 15, 2016, Ms. Mitchell filed a petition for writ of habeas corpus
in which she alleged that the evidence presented at the preliminary hearing
failed to satisfy the Commonwealth’s burden of a prima facie showing of
possession required for the crimes of controlled substance by a person not
registered, 35 P.S. § 780-113(a)(16), and use/possession of drug
paraphernalia, 35 P.S. § 780-113(a)(32). Her request for a hearing was
granted, and the hearing took place on August 8, 2016.
The Commonwealth rested on the evidence adduced at the preliminary
hearing from Officer Chiodo. Ms. Mitchell testified on her own behalf. She
stated that she lived approximately ten feet from where she was arrested.
On the evening in question, she walked to Sheetz to buy cigarettes, but
doubled back because she had forgotten her identification card. She had no
cell phone with her and no driver’s license because she could not drive. It
was raining. She recognized the co-defendant, Abdul Kirk, as he drove by
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and she entered his car. They were talking outside of her house when
Officer Chiodo pulled up. Ms. Mitchell testified that she was unaware of
drugs in the car, that she did not have any drugs, and that she was not
buying any drugs. With regard to the disorderly conduct count, counsel
argued that there was no evidence that Ms. Mitchell created a hazardous or
physically offensive condition as required for disorderly conduct under 18
Pa.C.S. § 5503(a)(4).
The trial court agreed with Ms. Mitchell that the evidence of possession
fell short of that required to establish a prima facie case. In addition, the
court found that the evidence did not establish that Ms. Mitchell created a
condition that involved a hazard or danger in the sense of a public disorder
for purposes of the disorderly conduct charge. The court dismissed the
charges.
The Commonwealth timely appealed the dismissal of the possession
charges and it presents one issue for our consideration: “Whether the trial
court erred when it found that the Commonwealth failed to make out a
prima facie case for possession of heroin and possession of marijuana
paraphernalia when each item was within easy access of the Defendant in an
automobile.” Commonwealth’s brief at 4.1
____________________________________________
1
Although Appellee sought and was granted several extensions of time to
file a brief, she has not done so.
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We review a pretrial petition for writ of habeas corpus by examining
the evidence and reasonable inferences derived therefrom in a light most
favorable to the Commonwealth. Commonwealth v. Dantzler, 135 A.3d
1109, 1111-1112 (Pa.Super. 2016) (quoting Commonwealth v. James,
863 A.2d 1179, 1182 (Pa.Super. 2004) (en banc). Whether the
Commonwealth has made out a prima facie case is a question of law, and
thus, we are not bound by the trial court’s legal determinations.
Commonwealth v. Karetny, 880 A.2d 505 (Pa. 2005). "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." Dantzler, supra at 1112. In meeting that burden, the
Commonwealth may use the evidence adduced at the preliminary hearing
and submit additional proof. Id.
The issue herein is whether the Commonwealth presented prima facie
evidence that Ms. Mitchell possessed the heroin and paraphernalia. The
Commonwealth could meet its burden by showing “actual, constructive, or
joint constructive possession of the contraband.” Commonwealth v.
Vargas, 108 A.3d 858, 868 (Pa.Super. 2014) (en banc). The
Commonwealth concedes that the items were not found on Ms. Mitchell’s
person and, that in order to proceed, it was required to prove constructive
possession. Constructive possession required proof that Ms. Mitchell had
both the power to control the contraband and the intent to exercise that
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control. Id. (citing Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa.
1983).).
The Commonwealth maintains that Ms. Mitchell and the driver could
have been in joint constructive possession. It challenges the trial court’s
finding that there was no evidence that Ms. Mitchell knew of the existence of
the marijuana wrappers when, four months later, she could articulate the
color and brand name of the wrappers. It argues further that co-defendant
Kirk had no access to the passenger door where the wrappers were located.
See Commonwealth v. Stembridge, 579 A.2d 901 (Pa.Super. 1990)
(constructive possession where appellant had easier access to drugs than
the driver and exhibited suspicious behavior).
The trial court noted that Officer Chiodo offered no testimony that Ms.
Mitchell made any furtive movement, or any movement at all, toward the
door as he approached. Absent was the type of suspicious behavior present
in Stembridge that would signal knowledge of the presence of the drug
paraphernalia. Nor did the totality of the circumstances permit a reasonable
inference that Ms. Mitchell knew of the wrappers. See Commonwealth v.
Juliano, 490 A.2d 891, 892 (Pa.Super. 1985) (appellant’s knowledge of a
green satchel at his feet did not permit a reasonable inference that he knew
it contained contraband where he made no furtive movements and did not
attempt to flee). After the officer observed “an opened foil pack of some
type of flavored cigars, which are commonly used to roll marijuana
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cigarettes or joints[,]” in the compartment at the bottom of the passenger
side door, he asked Ms. Mitchell whether they belonged to her. N.T.
Preliminary Hearing, 4/13/16, at 9-10. Ms. Mitchell told him they were not
hers, and “[w]e both had reached for them at the same time. And she
handed them to me.” Id. at 10. Viewing the evidence in the light most
favorable to the Commonwealth, we agree with the trial court that the
Commonwealth failed to adduce prima facie evidence from which it could be
inferred that Ms. Mitchell knew the wrappers were there or that she intended
to exercise control over the paraphernalia.
We reach a similar conclusion with regard to constructive possession of
the drugs. A subsequent search of the vehicle at the scene yielded a candy
box located on the driver’s side floor. The box contained packets of heroin.
Although the heroin was concealed in a container in an area occupied by co-
defendant, the Commonwealth asked the trial court, and subsequently this
Court, to infer that the box had been placed there “in a furtive way” as the
police approached because its location would have interfered with the
operation of the brake and gas pedal.
Again, the trial court found that Ms. Mitchell’s mere proximity to the
box was not enough, especially where it was located at the driver’s feet and
the heroin was not in plain view. Even if there was evidence that Ms.
Mitchell saw the candy box, no reasonable inference could be drawn that she
knew there was heroin concealed therein. The court analogized the facts to
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those in Commonwealth v. Spencer, 621 A.2d 153 (Pa.Super. 1993),
where a passenger in a car was charged with possession of cocaine found in
the armrest of the driver’s side door. This Court found no constructive
possession as there was no evidence that the passenger knew the drugs
were within the car or exercised conscious dominion over them.
The trial court contrasted this situation with the one in
Commonwealth v. Cruz-Ortega, 539 A.2d 849 (Pa.Super. 1988), where
cocaine was found under the defendant’s seat and he was observed leaning
over in his seat when police stopped the vehicle. See also Commonwealth
v. Austin, 631 A.2d 625 (Pa.Super. 1993) (bag containing cocaine at
defendant’s feet, he was observed touching it, and he lied about its contents
to police).
Having examined the evidence and drawn the reasonable inferences
derived therefrom in a light most favorable to the Commonwealth, we agree
with the trial court that the Commonwealth failed to introduce prima facie
evidence of possession. Absent was evidence from which any reasonable
inference could be drawn that Ms. Mitchell constructively possessed either
the paraphernalia or the heroin.
Order affirmed.
P.J.E. Bender joins the memorandum.
Judge Strassburger files a concurring/dissenting memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2017
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Com. v. Mitchell, L.
Combined Opinion