J-A01037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
LUIS P. LAMAS
Appellee No. 1287 EDA 2015
Appeal from the Order Entered April 16, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000270-2015
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 19, 2016
The Commonwealth of Pennsylvania appeals from the order of the
Court of Common Pleas of Philadelphia County, entered April 16, 2015,
granting Luis P. Lamas’ motion to quash five charges in the criminal
indictment and quashing the remaining four charges sua sponte. Upon
review, we affirm in part, vacate in part, and remand for further
proceedings.
Lamas was arrested on October 3, 2014. He was charged with
possessing a controlled substance with intent to deliver,1 intentional or
knowing possession of a controlled substance,2 possession of marijuana,3 ____________________________________________
1 35 Pa.C.S. § 780-113(a)(30). 2 35 Pa.C.S. § 780-113(a)(16).
*Former Justice specially assigned to the Superior Court. J-A01037-16
possession of drug paraphernalia,4 prohibited possession of a firearm,5
carrying a firearm without a license,6 carrying a firearm on a public street,7
possessing an instrument of crime,8 and receiving stolen property.9
A preliminary hearing was held on January 8, 2015 before Municipal
Court Judge Jacquelyn Frazier-Lyde. At this hearing, the Commonwealth
offered the testimony of three police officers who played a role in Lamas’
arrest and the search of his residence.
Officer Joseph Guinan testified that a report of a male with a gun
brought him to the 2900 block of Frankford Avenue around 9:40 p.m. on the
night of October 3, 2014. At this time, he spotted Lamas walking down East
Orleans Street towards Frankford Avenue. As Officer Guinan turned his
marked vehicle onto East Orleans Street, he saw Lamas grab his waistband,
turn away from the police cruiser, and begin hurriedly walking towards one
of the residences on East Orleans Street. Officer Guinan and his partner,
_______________________ (Footnote Continued) 3 35 Pa.C.S. § 780-113(a)(31). 4 35 Pa.C.S. § 790-113(a)(32). 5 18 Pa.C.S. §6105(a)(1), (c)(2). 6 35 Pa.C.S. § 6106(a)(1). 7 35 Pa.C.S. § 6108. 8 18 Pa.C.S. § 907(b). 9 18 Pa.C.S. § 3925.
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Officer Curtis Macy, exited their vehicle and pursued Lamas on foot, catching
up with him just as he entered a residence at 2050 East Orleans Street and
shut the door behind him. The officers knocked on the door for
approximately five to ten seconds before Lamas opened it. At this time,
Officers Guinan and Macy secured Lamas and searched his person,
recovering $1,407.00.
Shortly thereafter, Officer Kevin Creely and Officer Cole arrived on the
scene. While Officers Guinan and Macy restrained Lamas, Officer Creely
entered 2050 East Orleans Street to search the property for a possible male
with a gun. Upon entering the premises, Officer Creely smelled a strong
odor of marijuana and spotted the butt of a handgun sticking out from
underneath a sofa about six to eight feet to the left of the front door. Officer
Creely also observed marijuana and paraphernalia in a shoebox on the
dining room table and equipment for the cultivation of marijuana in the back
upstairs bedroom.
Officer Michael Vargas of the drug strike force later executed a warrant
to search the house for drugs. This search recovered the following items:
three small bags of marijuana, a prescription pill bottle bearing another
individual’s name and containing 69 oxycodone pills, heat lamps and other
equipment typically used for growing marijuana, and equipment and
materials typically used to package heroin for sale. In the front upstairs
bedroom, officers also recovered two letters addressed to Lamas at 2050
East Orleans Street and a Pennsylvania identification card issued to Lamas.
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Officer Vargas searched the serial number of the recovered handgun in the
FBI’s National Crime Information Center computer database and discovered
that it had been reported stolen from Bensalem, Pennsylvania on March 28,
2013. N.T. Preliminary Hearing, 1/8/15, at 22. The Commonwealth also
presented as evidence the defendant’s criminal extract showing a 2008
conviction for possessing a controlled substance with the intent to deliver.
After a preliminary hearing on January 8, 2015, Judge Frazier-Lyde
held over all nine charges for trial. However, on February 16, 2015, Lamas
filed a motion to quash five of the charges: possession of marijuana,
possession of a firearm on a public street, possession of a firearm without a
license, possession of an instrument of crime, and receipt of stolen property.
Lamas argued that the Commonwealth had not presented sufficient evidence
to charge him with possession of the handgun, drugs, and paraphernalia
recovered from 2050 East Orleans Street.
After a hearing on April 16, 2015, Judge Harold Kane of the
Philadelphia County Court of Common Pleas granted Lamas’ motion with
respect to these five charges and quashed the remaining four charges sua
sponte. Because Judge Kane retired shortly thereafter, he did not write a
trial court opinion.
The Commonwealth filed a timely notice of appeal from the court’s
order, as well as a timely concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). On appeal, the Commonwealth raises
one issue for review:
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Did the lower court err in quashing all charges where the evidence was sufficient to establish a prima facie case of possessing a stolen gun and drugs and possession with intent to deliver, where a gun, drugs and drug selling paraphernalia were found in a house into which defendant had fled from police, no one else was in the house, and mail and an identification card was found in the house in defendant’s name at that address?
Appellant’s Brief, at 1.
We examine this issue under the following standard of review: “It is
settled that the evidentiary sufficiency, or lack thereof, of the
Commonwealth’s prima facie case for a charged crime is a question of law as
to which an appellate court’s review is plenary.” Commonwealth v.
Karetny, 880 A.2d 474, 513 (Pa. Super. 2003).
The Commonwealth contends that it presented sufficient evidence at
the preliminary hearing to meet its burden of proving a prima facie case for
all nine charges quashed by the trial court. Lamas, however, argues that
the Commonwealth failed to present sufficient evidence that he
constructively possessed the handgun, drugs, or drug paraphernalia.
Initially, we note that,
[a]t the preliminary hearing stage of a criminal prosecution, the Commonwealth need not prove the defendant’s guilt beyond a reasonable doubt, but rather, must merely put forth sufficient evidence to establish a prima facie case of guilt. A prima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes probable cause to warrant the belief that the accused committed the offense. Furthermore, the evidence need only be such that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to be decided by the jury.
Karetny, 880 A.2d at 513–14 (citations omitted).
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The offense of carrying a firearm on the public streets of Philadelphia
is defined in the Crimes Code as follows:
§ 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. § 6108. A conviction under this section requires only proof that
the defendant was carrying a firearm on the public streets of Philadelphia.
Commonwealth v. Welton, 465 A.2d 1043, 1050 (Pa. Super. 1983).
Lamas argues that the Commonwealth has not offered sufficient
evidence to warrant the belief that Lamas possessed the recovered handgun
on a public street. In support of this argument, Lamas points to Officer
Guinan’s testimony that he never saw a weapon in Lamas’ hand and that no
weapons were recovered on Lamas’ person. N.T. Preliminary Hearing,
1/8/15, at 10. Lamas also argues that the evidence offered by the
Commonwealth is insufficient to warrant a belief that Lamas constructively
possessed the handgun. Appellee’s Brief at 7. According to Lamas, other
individuals had access to the residence and the handgun was concealed
underneath a sofa at the time it was recovered. Id. at 7. As a result,
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Lamas argues that the Commonwealth’s evidence is insufficient to warrant a
belief that he constructively possessed the handgun. Id.
The Commonwealth, however, maintains that it produced “sufficient
evidence at the preliminary hearing that defendant constructively possessed
the gun.” Commonwealth’s Brief at 12. Officer Guinan testified that he was
in the area responding to a report of a male with a gun. Upon seeing the
marked police car, Lamas grabbed his waistband, turned away quickly, and
ran into the residence. Lamas was in the residence for only five or ten
seconds before he opened the door and was taken into custody. Officer
Creely testified that, once inside the residence, he discovered the firearm
sticking out from underneath a sofa, approximately six to eight feet from the
front door. Officers also discovered mail in the house with Lamas’ name,
addressed to 2050 East Orleans Street. Based on this evidence, the
Commonwealth maintains that there is sufficient evidence to support
probable cause to warrant the belief that the recovered firearm was in
Lamas’ possession on the public streets of Philadelphia. In order to establish
a prima facie case, “the evidence need only be such that, if presented at trial
and accepted as true, the judge would be warranted in permitting the case
to be decided by the jury.” Karetny, 180 A.2d at 514. In light of this
standard, we agree with the Commonwealth that the court erred in quashing
the charge of carrying a firearm on a public street in Philadelphia.
The offense of carrying a firearm without a license is defined, in
relevant part, as follows:
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§ 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.
18 Pa.C.S. § 6106(a)(1). A conviction under this section requires the
Commonwealth to prove: “(a) that the weapon was a firearm, (b) that the
firearm was unlicensed, and (c) that where the firearm was concealed on or
about the person, it was outside his home or place of business.”
Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (citation
omitted).
At the April 16, 2015 preliminary hearing, Lamas argued that the
Commonwealth had not presented sufficient evidence to hold this charge
over for trial. Lamas made no arguments regarding the first two elements of
the charge. It is settled that the weapon was, in fact, a firearm and that
Lamas did not possess a license to carry it. However, Lamas argues that, as
with the section 6108 charge, the Commonwealth had not presented
sufficient evidence that Lamas possessed the firearm at the time that
Officers Guinan and Macy observed him on East Orleans Street.
The Commonwealth maintains that the officers’ testimony is sufficient
to support probable cause to warrant the belief that, at the time he was
observed by Officers Guinan and Macy, Lamas was concealing the recovered
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handgun in his waistband. In light of the standard for establishing a prima
facie case, we agree that the Commonwealth has presented sufficient
evidence to establish a prima facie charge under 18 Pa.C.S. § 6106(a)(1).
See Karetny, supra.
The offense of person not to possess a firearm is defined, in relevant
part, as follows:
§ 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms
(1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.
...
(c) Other persons.
(2) A person who has been convicted of an offense under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or any equivalent Federal statute or equivalent statute of any other state, that may be punishable by a term of imprisonment exceeding two years.
18 Pa.C.S. §§ 6105(a)(1), (c)(2). In order to establish a prima facie case
under this section, the Commonwealth must prove that a person possessed
a firearm and had a prior conviction for an offense listed in the statute
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defining the offense. Commonwealth v. Williams, 911 A.2d 548 (Pa.
Super. 2006).
At the January 8, 2015 hearing, the Commonwealth presented a
criminal extract showing Lamas’ 2008 conviction for possessing a controlled
substance with the intent to deliver. Because we have determined the
Commonwealth presented sufficient evidence to warrant a belief that Lamas
either actually or constructively possessed a firearm on October 3, 2014, the
evidence regarding his prior drug conviction is sufficient to establish a prima
facie charge under 18 Pa.C.S. §§ 6105(a)(1), (c)(2). See Karetny, supra.
The offense of possession of an instrument of a crime is defined, in
§ 907. Possessing the instruments of a crime ...
(b) Possession of weapon. — A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally.
18 Pa.C.S. § 907(b). A conviction under this section requires proof that the
defendant “possessed [the] gun under circumstances manifestly
inappropriate for such lawful uses the gun may have had and with an intent
to employ it criminally.” Commonwealth v. Jeter, 418 A.2d 625, 628 (Pa.
Super. 1980).
As discussed above, the Commonwealth has presented sufficient
evidence to support probable cause to warrant the belief that Lamas
possessed the recovered firearm on the night of his arrest. In addition to
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the firearm, Officer Vargas also recovered 69 oxycodone pills, multiple bags
of marijuana, drug paraphernalia and packaging materials, as well as
equipment used in the cultivation of marijuana. N.T. Preliminary Hearing,
1/8/15, at 22-23. The Commonwealth contends that this evidence is
sufficient to establish that Lamas possessed the firearm in furtherance of his
illegal drug activity. In light of the standard for establishing a prima facie
case enunciated in Karetny, we agree that the Commonwealth has
presented sufficient evidence to establish a prima facie charge under 18
Pa.C.S. § 907(b). See Karetny, supra.
The offense of intentional or knowing possession of a controlled
substance is defined in The Controlled Substance, Drug, Device and
Cosmetic Act (the Drug Act), as follows:
§ 780-113. Prohibited acts; penalties
(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.
35 Pa.C.S. § 780-113(a)(16). The Commonwealth has the option to
establish actual or constructive possession of the controlled substance.
Commonwealth v. Perez, 931 A.2d 703 (Pa. Super. 2007). Constructive
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possession is the ability to exercise conscious dominion over the illegal
substance, the power to control it, and the intent to control it.
Commonwealth v. Macolino, 469 A.2d 132 (Pa. 1983). Constructive
possession of contraband may be proven by circumstantial evidence, and
the requisite knowledge and intent may be inferred from a totality of the
circumstances. Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa.
Super. 1996) (citations omitted).
Officer Vargas recovered a prescription bottle containing 69 oxycodone
pills from in the living room of the residence. N.T. Preliminary Hearing,
1/8/2015, at 22. Lamas contends that, as a matter of law, there is
insufficient evidence that he ever actually or constructively possessed the
pills. Appellee’s Brief at 7. Because none of the officers testified to
observing Lamas in physical possession of the pill bottle, Lamas correctly
argues that there is insufficient evidence to establish Lamas’ actual
possession of the Oxycodone. Lamas also argues that there is insufficient
evidence that he constructively possessed the Oxycodone because the fact
that the prescription bottle bears another individual’s name proves that
others besides Lamas had access to the residence. Appellee’s Brief at 7.
The Commonwealth contends that it is not required to prove that
Lamas was the only person with access to the residence in order to make
out a prima facie charge against him for constructive possession of a
controlled substance. Appellant’s Brief at 13. In order to present a prima
facie case that Lamas constructively possessed the Oxycodone, the
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Commonwealth contends that it need only establish probable cause to
warrant a belief that Lamas lived at the residence and that he had access to
the specific area where the Oxycodone was found. See Commonwealth v.
Mudrick, 507 A.2d 1212, 1213 (Pa. 1986) (“constructive possession may be
found . . . if contraband is found in an area of joint control and equal
access”).
Officer Guinan testified that, on the night of October 3, 2014, Lamas
retreated into the residence at 2050 East Orleans Street. Officers Guinan
and Macy arrested Lamas inside this residence. Officer Vargas testified that
Lamas’ official state-issued identification card and two letters addressed to
him at 2050 East Orleans Street were recovered from one of the upstairs
bedrooms. Accordingly, the Commonwealth has presented sufficient
evidence to establish a prima facie charge under 35 Pa.C.S. § 780-
113(a)(b). See Karetny, 880 A.2d at 513-14.
The offense of possession of marijuana in The Drug Act as follows:
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(31) Notwithstanding other subsections of this section, (i) the possession of a small amount of marihuana only for personal use; (ii) the possession of a small amount of marihuana with the intent to distribute it but not to sell it; or (iii) the distribution of a small amount of marihuana but not for sale.
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For purposes of this subsection, thirty (30) grams of marihuana or eight (8) grams of hashish shall be considered a small amount of marihuana.
35 Pa.C.S. § 780-113(a)(31). As with the possession of a controlled
substance charge, Lamas contends that he cannot be held for trial on the
possession of marijuana charge because there is evidence that at least one
other person had access to the house. Appellee’s Brief at 6. The
Commonwealth, on the other hand, argues that it has made out a prima
facie case on the possession of marijuana charge regardless of whether
another person had access to the house. Officer Vargas testified that he
found three bags of marijuana in the house: two in the dining room and one
in the kitchen. N.T. Preliminary Hearing, 1/8/15, at 22-23. The
Commonwealth argues that Lamas resided at 2050 Orleans Street and had
access to all of these areas. Therefore, under the applicable standard, the
Commonwealth has established that Lamas can be held for trial on the
possession of marijuana charge. See Karetny, supra.
The offense of possession of a controlled substance with the intent to
deliver is defined in The Drug Act as follows:
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(30) 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 licensed by the appropriate
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State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.
35 Pa.C.S. § 780-113(a)(30). At the January 8, 2015 hearing, the
Commonwealth conceded that it sought to bring the possession with intent
to deliver charge only in regards to the marijuana and not the Oxycodone.
N.T. Preliminary Hearing, 1/8/2015, at 33. At the April 16, 2015 hearing,
Lamas seemed to argue that the relatively small amount of marijuana found
on the property should support the conclusion of an absence of an intent to
deliver. N.T. Preliminary Hearing, 4/16/2015, at 5. The Commonwealth,
however, argued that the paraphernalia recovered in addition to the
marijuana itself supports the charge. Officers recovered: “marijuana that
[was] sealed in a bag next to a sealer, which seals up drugs,” “packaging
materials,” “a scale,” “grow equipment,” and “stamps to stamp the product.”
N.T. Preliminary Hearing, 4/16/2015, at 8. The Commonwealth argues that
these items “are all indicative of possession with intent to deliver.” Id. We
agree that the Commonwealth has presented sufficient evidence to establish
a prima facie charge under section 780-113(a)(30). See Karetny, supra.
The offense of possession of drug paraphernalia is defined in the
Health and Safety Code as follows:
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(32) The use of, or possession with intent to use, drug paraphernalia for the purpose of planting, propagating,
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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 Pa.C.S. § 780-113(a)(32). With regard to the paraphernalia charge,
Lamas puts forth the same arguments regarding constructive possession as
he did for the controlled substance and marijuana possession charges. The
Commonwealth argues that Lamas constructively possessed all of the
paraphernalia found in the residence. Officer Vargas testified that he found
a digital scale, drug paraphernalia, and various materials used for packaging
heroin in the shoebox on the dining room table. N.T. Preliminary Hearing,
1/8/15, at 23. Officer Vargas also found a packaging machine in the kitchen
and marijuana cultivation equipment in the back bedroom on the second
floor. Id. Accordingly, the Commonwealth has presented sufficient
evidence to establish a prima facie charge under 35 Pa.C.S. § 780-
113(a)(32). See Karetny, 880 A.2d at 513-14.
The offense of receiving stolen property is defined in the Crimes Code
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 it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.
(b) Definition.—As used in this section the word “receiving” means acquiring possession, control or title, or lending on the security of the property.
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18 Pa.C.S. § 3925. A conviction under this section requires proof that the
defendant possessed the stolen item and knew, or had reason to know, that
the item was stolen. Commonwealth v. Morrissey, 654 A.2d 1049 (Pa.
Super. 1995).
The Commonwealth presented Officer Vargas’ testimony that the FBI’s
National Crime Information Center database indicated that the handgun
recovered from Lamas’ residence was stolen on March 28, 2015 from
Bensalem, PA. N.T. Preliminary Hearing, 1/8/15, at 22. The Commonwealth
contends that this evidence is sufficient to establish a prima facie charge
against Lamas for receiving stolen property. Appellant’s Brief at 15.
Lamas, however, contends that the Commonwealth has not produced
sufficient evidence to establish the mens rea element of the charge of
receiving stolen goods. Lamas argues that the eighteen-month period
between the theft of the handgun and its discovery in Lamas’ possession is
too long to support an inference that Lamas had knowledge that the gun was
stolen. N.T. Preliminary Hearing, 4/16/15, at 6. The Commonwealth offered
no other evidence to establish the required mens rea element of the charge.
Furthermore, the Commonwealth conceded that there was a lack of
evidentiary support for the receiving stolen property charge at the April 16,
2015 hearing before Judge Harold Kane. N.T. Preliminary Hearing, 4/16/15,
at 8. In order to establish a prima facie charge, the Commonwealth must
produce “evidence of each of the material elements of the crime charged.”
Karetny, 850 A.2d. at 514. Because the Commonwealth has failed to
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produce evidence of the required mens rea element of the crime of receiving
stolen property, we agree with Lamas and affirm the trial court’s quashal of
the receiving stolen property charge.
In conclusion, we agree with the Commonwealth that the trial court
erred in quashing eight of the nine charges against Lamas. It is apparent
from the officers’ preliminary hearing testimony that the Commonwealth has
satisfied its burden of demonstrating a prima facie case against him.
Accordingly, we vacate the trial court’s order in part, affirm in part, and
remand for trial.10
Order affirmed in part and vacated in part. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/19/2016
____________________________________________
10 Our decision to reverse the quashal of eight criminal charges does not preclude Lamas from challenging the search of his residence in subsequent proceedings nor does it express any opinion regarding the Commonweath’s ability to establish beyond a reasonable doubt that Lamas committed the offenses charged.
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