Com. v. Reid, A.

• Court: Superior Court of Pennsylvania
• Decided: October 25, 2022
• Docket: 1940 EDA 2021
• Status: Unpublished

Opinion

J-A17002-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ANTWYNE REID : No. 1940 EDA 2021

Appeal from the Order Entered August 26, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000650-2020

BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 25, 2022

The Commonwealth brings this appeal seeking to overturn the trial

court’s decision to quash, due to failure to establish a prima facie case, all

criminal charges filed against Antwyne Reid. We affirm.

On March 8, 2019, Philadelphia Police executed a search warrant at 105

North Edgewood Street as part of an investigation of Tyriq Goodwin (“Tyriq”).

Tyriq lived at the residence with his mother, Keoshia Goodwin (“Goodwin”),

and his sister. During the search, authorities recovered crack cocaine, drug

paraphernalia and a firearm. Detectives also found items belonging to Reid,

including an expired and a current identification card, a debit card, mail, and

a 2018 auto service receipt for a vehicle that Reid had previously owned.

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* Retired Senior Judge assigned to the Superior Court. J-A17002-22

However, the items belonging to Reid indicated addresses at another street in

Philadelphia, Callowhill Street.

On March 16, 2019, Reid was arrested and charged with possession with

intent to deliver (“PWID”), conspiracy, possession of firearm by a prohibited

person, and intentional possession of a controlled substance by a person not

registered. At the conclusion of a preliminary hearing on August 8, 2019, all

charges were dismissed.

The Commonwealth then filed a notice of intent to refile the charges. At

the conclusion of a hearing on January 23, 2020, the municipal court granted

the Commonwealth’s motion to refile all charges. Thereafter, Reid filed, in the

Court of Common Pleas, an omnibus pretrial motion to quash, claiming the

Commonwealth failed to establish a prima facie case. After a hearing on

August 26, 2021, the trial court granted the motion to quash all charges. The

Commonwealth filed this timely appeal.1

The Commonwealth first argues that the trial court erred in quashing

the charges. See Commonwealth’s Brief at 13-23. The Commonwealth asserts

that it presented sufficient evidence to establish that Reid constructively

possessed the firearm and drugs, thereby presenting a prima facie case

sufficient to hold the charges for trial. The Commonwealth contends that the

1 Pursuant to Pa.R.A.P. 311(d), in its notice of appeal the Commonwealth certified that the trial court’s order terminates or substantially handicaps the prosecution.

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trial court failed to view the evidence in the light most favorable to the

Commonwealth. Further, the Commonwealth suggests the trial court utilized

an improper standard in considering whether the Commonwealth established

a prima facie case. Upon careful review, we conclude the trial court properly

quashed the charges.

“It is well-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. Hilliard,

172 A.3d 5, 12 (Pa. Super. 2017) (citation and internal quotation marks

omitted). “[T]he trial court is afforded no discretion in ascertaining whether,

as a matter of law and in light of the facts presented to it, the Commonwealth

has carried its pre-trial, prima facie burden to make out the elements of a

charged crime.” Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005).

Therefore, we are not bound by the legal determinations of the trial court and

our standard of review is de novo. Id.

Our Supreme Court described the Commonwealth’s burden as follows:

At 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.

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Karetny, 880 A.2d at 513-14 (citations omitted) (emphasis added). However,

“suspicion and conjecture are not evidence and are unacceptable as such.”

Commonwealth v. Holston, 211 A.3d 1264, 1269 (Pa. Super. 2019) (en

banc).

Here, the Commonwealth charged Reid with the crimes of intentional

possession of a controlled substance, PWID, and possession of a firearm by a

prohibited person. To find a defendant guilty of PWID, 35 P.S. § 780-

113(a)(30), the Commonwealth must prove that the defendant possessed a

controlled substance and did so with the intent to deliver it. See

Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super. 2007). Similarly,

to sustain a conviction for intentional possession of a controlled substance, 35

P.S. § 780-113(a)(16), the Commonwealth must prove that the defendant

knowingly and intentionally possessed the controlled substance. And

possession of a firearm is likewise an essential element of the offense of

possession of a firearm by a prohibited person. See 18 Pa.C.S.A. §

6105(a)(1); Commonwealth v. Antidormi, 84 A.3d 736, 757 (Pa. Super.

2014).

All three crimes require the Commonwealth to establish probable cause

that Reid “possessed” the contraband. The Crimes Code defines the term

“possession” as “an act, within the meaning of this section, if the possessor

knowingly procured or received the thing possessed or was aware of his

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control thereof for a sufficient period to have been able to terminate his

possession.” 18 Pa.C.S.A. § 301(c).

To establish the element of possession, this Court has explained that

“[p]ossession can be found by proving actual possession, constructive

possession, or joint constructive possession.” Commonwealth v. Parrish,

191 A.3d 31, 36 (Pa. Super. 2018) (citation omitted). It is undisputed that

Reid was not in actual possession of the drugs or the firearm. Rather, the

contraband was discovered during the execution of a search warrant in a home

that was not Reid’s residence. It is further undisputed that Reid was not

present during the execution of the search warrant.

We previously have determined:

Where a defendant is not in actual possession of the prohibited items, the Commonwealth must establish that the defendant had constructive possession to support the conviction. Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. 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. To aid application, we have held that constructive possession may be established by the totality of the circumstances.

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, 191 A.3d at 36–37 (internal citations and quotations omitted)

(emphasis added).

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In addition, the power and intent to control contraband does not need

to be exclusive to a defendant to find constructive possession. Our Supreme

Court has recognized that “constructive possession may be found in one or

more actors where the item in issue is in an area of joint control and equal

access.” Commonwealth v. Johnson, 26 A.3d 1078, 1094 (Pa. 2011)

(citation and brackets omitted).

We first consider whether the trial court properly quashed both drug

charges. The trial court addressed the evidence that the Commonwealth

contends established Reid’s possession of the drugs as follows:

[T]here is no evidence that was brought forth that [Reid] had constructive possession over the drugs that were found … in the front room of Ms. Goodwin’s residence. [The] Commonwealth tries to prove constructive possession by arguing that the IDs, an old auto service receipt, and mail is enough to suggest that [Reid] has had constructive possession of the drugs that were found. N.T. 08/26/2021 at 56-61. However, there are inconsistencies as to where the drugs are actually located. N.T. 08/26/2021 at 22-26. Detective Opalski claimed that the items were recovered in a Sterlite drawer; however, Detective Wyche claimed the items that were recovered from the property were found under the bed in a gray safe box.

Furthermore, just because [Reid’s] expired IDs and mail may have been present with the drug … it is not enough to suggest that he has possession over the drugs because mere association is not enough. … Additionally, … the lack of nexus to [Reid], and the drugs found at [Goodwin’s] residence would force the jury to speculate because (1) Commonwealth did not provide any evidence of [Reid] living at the residence where the items were found; (2) there is no evidence pointing to [Reid’s] whereabouts in 2019, the year of the search warrant; and (3) the initial warrant was for [Tyriq]. … [The] Commonwealth cannot prove a prima facie case against [Reid] for possession of a controlled substance nor PWID because [it] cannot prove possession through the “mere

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‘association,’ ‘suspicion’ or ‘conjecture’” of [Reid’s] items being found at a residence that is not his.

Trial Court Opinion, 11/19/21, at 9-10.

We agree with the trial court’s reasoning. Upon review, we conclude

there was no evidence to suggest that Reid had the requisite power to control

the drugs and the intent to exercise that control. Of particular concern is the

dearth of evidence indicating that Reid was ever present in the residence while

the narcotics were present. Rather than present such evidence, the

Commonwealth relies upon the presence of random items belonging to Reid

being at the residence. Importantly, none of the items containing Reid’s name

reflect a connection to the residence in question.2 Moreover, there was no

evidence to suggest that Reid had joint control and equal access to the drugs.

Accordingly, the lack of evidence to establish a nexus between Reid and the

residence requires us to conclude, as did the trial court, that a prima facie

case was not established regarding both drug charges.

We next address whether the trial court properly quashed the firearm

violation charge. The trial court addressed the evidence that the

Commonwealth claims established Reid’s constructive possession of the gun

as follows:

[T]he Commonwealth could not prove that [Reid] had constructive possession over the gun. Firstly, Commonwealth has shown no ____________________________________________

2 As the trial court aptly states, “[Reid’s] possessions that were found at the residence had [Reid’s] address of his residence on Callowhill Street in the City of Philadelphia.” Trial Court Opinion, 11/19/21, at 2-3 (citation omitted).

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evidence of who is the actual owner of the gun. Secondly, the only argument of constructive possession that the Commonwealth has is [Reid’s] identification and mail being found at the residence. N.T. 08/26/2021 at 56-59. However, [Reid’s] possessions having “mere association” within [Goodwin’s] residence is not enough because it does not show a true nexus to the gun. Further, it is clear that [Reid] does not reside at the residence that the gun was found. The Commonwealth leaning on expired IDs and other items would lead the finder of fact to speculate the true nexus between [Reid], and the gun found. Thus, because Commonwealth cannot show that [Reid] had conscious dominion and control over a gun at [another person’s] residence, and because there is no evidence even to suggest that it is his gun, the Commonwealth could not prove a prima facie case for this charge.

Trial Court Opinion, 11/19/21, at 12-13.

We agree with the reasoning presented by the trial court. The

Commonwealth failed to establish constructive possession of the gun, as

required to put forth a prima facie case. In short, the Commonwealth

presented no evidence that Reid had the power to control the gun that was

discovered at a home that was not his own. Interestingly, Detective Damian

Wyche offered testimony at the preliminary hearing indicating that the firearm

was discovered in a little safe. See N.T., 8/8/19, at 35-36. However, he

explained that the safe was unlocked and that the key was in the locking

mechanism. See id. This fact indicates that control of and access to the

firearm was not exclusive to the person possessing the key. Moreover, while

the discovery at the home of items belonging to Reid may appear curious, the

items’ mere presence, without more, would require mere conjecture to find

that Reid constructively possessed the firearm.

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In addition to the three possessory crimes, Reid was charged with

conspiracy. To sustain a conviction for criminal conspiracy under 18 Pa.C.S.A.

§ 903, “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. Fisher, 80 A.3d 1186,

1190 (Pa. 2013) (citation omitted). “[T]he 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.” Commonwealth

v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018) (citation omitted). A

conspiracy is almost always proven by circumstantial evidence. See

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002) (en

banc). However, the evidence must rise above the mere possibility of guilty

collusion. See id.

The trial court addressed the question of whether the Commonwealth

established a prima facie case of conspiracy with the following discussion:

[T]he Commonwealth has not proved any showing of any agreement between [Reid] and [Goodwin]. Further, there is zero evidence of a nexus between [Reid] and the drugs that were found in the front room of the property. Additionally, in both the preliminary hearing and the trial court’s Motion to Quash, both detectives admitted that they did not have any information of [Reid] being present at the property nor associated with the property in the year of 2019 (when the search took place); nor was the search warrant for [Reid]. N.T. 08/08/2019 at 44-50; N.T. 08/26/2021 at 25 and 29-30. Moreover, [the] Commonwealth

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failed to show any evidence that [Reid] and Ms. Goodwin were in contact with one another to make any type of agreement to conspire to a criminal act. Thus, because there is no evidence from [the] Commonwealth showing that [Reid] and Ms. Goodwin conspired to sell or deliver a controlled substance, the Commonwealth did not meet its burden of any of the elements for conspiracy.

Trial Court Opinion, 11/19/21, at 11.

Again, we must agree with the trial court that the Commonwealth failed

to present evidence necessary to imply that Reid entered into an agreement

to commit or aid in an unlawful act with another, which is the first of the

elements required for a conspiracy. The Commonwealth’s reliance upon the

presence at Goodwin’s home of unrelated items of personalty bearing Reid’s

name is too tenuous to intimate an agreement to commit an unlawful act.

Therefore, we agree that the Commonwealth did not establish a prima facie

case of conspiracy.

In summary, we conclude the trial court properly determined the

Commonwealth did not establish the necessary prima facie cases for each of

the criminal charges brought against Reid. Consequently, the trial court

correctly quashed the criminal charges filed against Reid, and the

Commonwealth’s contrary argument lacks merit.

The Commonwealth last argues that the trial court’s action in granting

the motion to quash the charges was in violation of the coordinate jurisdiction

rule. See Commonwealth’s Brief at 23-27. The Commonwealth contends that

the Honorable Vincent L. Johnson, the judge who quashed the criminal charges

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in the trial court, violated the coordinate jurisdiction rule because the

Honorable Crystal B. Powell had previously granted the Commonwealth’s

motion to refile the charges. See id. at 24-25.

Before we reach the merits of this claim, we must consider whether the

Commonwealth’s argument is preserved for appellate review. Pursuant to

Pa.R.A.P. 302, issues that are not raised in the lower court are waived and

cannot be raised for the first time on appeal. See Pa.R.A.P. 302(a). Moreover,

we have held that a failure to lodge in the trial court a timely objection based

on the coordinate jurisdiction rule results in waiver of the issue on appeal. See

Commonwealth v. Taylor, 277 A.3d 577, 585 (Pa. Super. 2022) (citations

omitted). Accordingly, only claims alleging a violation of the coordinate

jurisdiction rule that have been properly presented in the trial court are

preserved for appeal. In addition, it is an appellant’s obligation to demonstrate

which appellate issues were preserved for review. See Pa.R.A.P. 2117(c),

2119(e).

Here, we are constrained to conclude that the Commonwealth’s

argument relying on the coordinate jurisdiction rule is waived because the

Commonwealth failed to present the claim to the trial court in the first

instance. In its appellate brief, the Commonwealth has not indicated where

the issue has been preserved. Moreover, our review of the certified record

reflects that the Commonwealth did not present a coordinate jurisdiction rule

challenge to the trial court. Consequently, this issue has been waived.

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Regardless, even if the Commonwealth had preserved this issue, we

would conclude the claim lacks merit. We begin by observing that the law of

the case doctrine “refers to a family of rules which embody the concept that

a court involved in the later phases of a litigated matter should not reopen

questions decided by another judge of that same court or by a higher court in

the earlier phases of the matter.” Commonwealth v. Starr, 664 A.2d 1326,

1331 (Pa. 1995). The law of the case doctrine precludes judges of coordinate

jurisdiction from overruling each other’s decisions absent exceptional

circumstances, such as a change in controlling law, a substantial change in

facts giving rise to the dispute, or where the prior decision would create

manifest injustice if followed. See id. 664 A.2d at 1332 (explaining that law

of case doctrine subsumes the coordinate jurisdiction rule). “Whether the Law

of the Case Doctrine precludes review in a given situation is a pure question

of law. Therefore, our standard of review is de novo.” Commonwealth v.

Lancit, 139 A.3d 204, 206 (Pa. Super. 2016) (internal citations omitted).

Pennsylvania Rule of Criminal Procedure 544 sets forth the procedure

allowing the Commonwealth to reinstitute a criminal charge following the

withdrawal or dismissal of a charge at a preliminary hearing. Rule 544

provides, in relevant part, that “[w]hen charges are dismissed or withdrawn

at … a preliminary hearing, … the attorney for the Commonwealth may

reinstitute the charges by approving, in writing, the re-filing of a complaint

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with the issuing authority who dismissed … the charges.” Pa.R.Crim.P.

544(A) (emphasis added).

Our review of the certified record reflects that a preliminary hearing was

held before the Honorable Sharon Williams Losier on August 8, 2019, in the

Municipal Court of Philadelphia. At the conclusion of the hearing, Judge Losier

dismissed all charges for lack of evidence. On September 11, 2019, the

Commonwealth filed in the Municipal Court of Philadelphia a “notice of refiling

of the criminal complaint,” as is permitted by Rule 544. On January 23, 2020,

a hearing was held before Judge Powell, who then issued a “short certificate”

granting the motion to refile the charges. The heading on the short certificate

reflects that the matter was proceeding in the municipal court. Thereafter, the

Commonwealth filed a criminal information in the Court of Common Pleas, and

Reid filed, in the Court of Common Pleas, an omnibus pretrial motion seeking

to quash the criminal charges. Reid’s motion was heard by Judge Johnson,

and relief was granted when Judge Johnson quashed all charges.

As evidenced by the record, the charges were initially dismissed in the

municipal court, and refiled by the Commonwealth’s notice of refiling

presented to the Municipal Court of Philadelphia. Subsequently, Judge Johnson

was the first judge to preside in the matter when the case had risen to the

Court of Common Pleas. Therefore, Judge Johnson’s action in quashing the

charges did not violate the coordinate jurisdiction rule/law of the case

doctrine, because the charges were refiled in the municipal court with the

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permission of the municipal court and not the Court of Common Pleas.

Therefore, if we had not found this issue to be waived, we would conclude the

Commonwealth’s argument does not merit relief.3

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/25/2022

3We note that the Commonwealth’s reliance on Commonwealth v. Bostian, 232 A.3d 898 (Pa. Super. 2020), is misplaced due to a significant procedural dissimilarity. In Bostian, the municipal court conducted a preliminary hearing and dismissed all charges at the close of testimony. See id. 232 A.3d at 901- 902, 906. The Commonwealth took an appeal to the Court of Common Pleas, which then reversed the municipal court’s dismissal and held all charges for court. See id. at 907. Thereafter, a new judge was assigned to the matter and the defendant filed a motion for reconsideration seeking dismissal of the charges, which was granted. See id. On appeal, this Court reversed on the conclusion that the coordinate jurisdiction rule had been violated by the judge who granted the motion for reconsideration.

Unlike Bostian, here, the Commonwealth did not appeal the municipal court’s dismissal of the charges to the Court of Common Pleas. Rather, the matter remained before the issuing authority when the Commonwealth presented to the municipal court its notice of refiling of the charges. Consequently, the case was not introduced to the Court of Common Pleas prior to Judge Johnson being presented with Reid’s omnibus pretrial motion. Accordingly, unlike the matter in Bostian, Judge Johnson’s decision did not run afoul of the coordinate jurisdiction rule.

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