Com. v. Mitchell, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL ANTHONY MITCHELL
Appellee No. 241 EDA 2015
Appeal from the Order December 18, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001841-2014
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 18, 2015
The Commonwealth appeals the order entered in the Court of Common
Pleas of Philadelphia County, granting Michael Anthony Mitchell’s pre-trial
motion to quash. After careful review, we reverse and remand for further
proceedings.
The trial court summarized the facts and initial procedural history of
this case as follows:
On January 31, 2014, Philadelphia Police Officers observed
[Mitchell] engaging in what they believed to be narcotics
transactions while outside of his home. As a result of these
observations, the officers placed [Mitchell] under arrest,
obtained a warrant, and searched the home in question. At the
time the warrant was executed, [Mitchell]’s mother and brother
were on the first floor of the home, and [Mitchell]’s brother was
preparing breakfast. The officers recovered a gun from the first
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*
Retired Senior Judge assigned to the Superior Court.
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floor of the home, where it was in plain view. Officers also
searched the second floor of the house, where they discovered
narcotics in a common area. [Mitchell]’s bedroom is located on
the second floor of the home, [Mitchell] had keys to the home,
and other evidence that [Mitchell] does in fact reside in the
home was found during the search.
On January 31, 2014, [Mitchell] was arrested and charged with
one (1) count [of] manufacture, delivery, or possession with
intent to manufacture or deliver; one count [of] intentional
possession [of a] controlled substance by person not registered;
one count of possession of drug paraphernalia; one (1) count
[of] possession [of an] instrument of crime; one (1) count
possession of firearm prohibited; and one (1) count conspiracy –
manufacture, delivery, or possession with intent to manufacture
or deliver.
On February 18, 2014, a preliminary hearing was held in the
Philadelphia County Municipal Court, where the above charges
were held for court. [Mitchell] filed a motion to quash the
charges of possession of a firearm prohibited and possession of
an instrument of a crime. This Court granted [Mitchell]’s motion
at a hearing held on December 18, 2014.
On January 16, 2015, the Commonwealth filed a notice of
appeal, as well as a 1925(b) statement of errors complained of
on appeal, questioning whether this court erred “in granting
[Mitchell]’s motion to quash weapons charges where the
evidence was sufficient to support a prima facie case, in that
[Mitchell] had a key to the residence where the gun was kept by
the front door, he sold drugs in front of the residence, drugs and
drug paraphernalia were found inside the residence, and the
residence contained work identification and a jury summons with
[Mitchell]’s name at that address.”
Trial Court Opinion, 3/10/15, at 1-3 (internal citations omitted).
The Commonwealth claims the trial court erred by granting Mitchell’s
motion to quash because the evidence presented at the preliminary hearing
established a prima facie case of possession of an instrument of crime
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(“PIC”),1 possession of a firearm by a prohibited person,2 conspiracy,3
knowing or intentional possession of a controlled substance,4 and possession
of drug paraphernalia.5 See Brief of Appellant, at 4.
Our standard of review of a trial court’s order granting a criminal
defendant’s pre-trial motion to quash is as follows:
The decision to grant a motion to quash a criminal information or
indictment is within the sound discretion of the trial judge and
will be reversed on appeal only where there has been a clear
abuse of discretion. Discretion is abused when the course
pursued by the trial court represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias, or ill will.
Commonwealth v. Lebron, 765 A.2d 293, 294-95 (Pa. Super. 2000)
(internal citations and quotations omitted).
First, we must address whether the trial court erred in dismissing all of
the charges against Mitchell with the exception of possession of a controlled
substance with the intent to deliver (“PWID”). The motion to quash filed by
Mitchell requested the dismissal of only two charges: (1) possession of a
firearm prohibited and (2) possession of an instrument of crime (“PIC”). “A
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1
18 Pa.C.S. § 907(a).
2
18 Pa.C.S. § 6105.
3
18 Pa.C.S. § 903.
4
35 P.S. § 780-113(a)(16).
5
35 P.S. § 780-113(a)(32).
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request to quash an information must ordinarily be made in an omnibus
pretrial motion for relief or it is considered waived.” Pa.R.Crim.P. 578;
Commonwealth v. Rishel, 658 A.2d 352, 358 (Pa. Super. 1995). Here,
Mitchell did not move to quash the charges of conspiracy, knowing or
intentional possession of a controlled substance, or possession of drug
paraphernalia, yet the court did so anyway. Accordingly, the trial court
erred in sua sponte quashing the charges. See Commonwealth v.
Waters, 418 A.2d 312, 318-19 (Pa. 1980) (finding trial court erred in
quashing attempted murder charge sua sponte). Therefore, these charges
must be reinstated.
The Commonwealth next claims that the court erred in quashing the
possession of a firearm prohibited and PIC charges, as it established a prima
facie case at the preliminary hearing by showing that Mitchell had
constructive possession over the gun found in the home. We agree.
The lower court held that the Commonwealth did not provide sufficient
evidence to establish a prima facie case because it did not prove that
Mitchell had actual or constructive possession of the gun. “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.”
Commonwealth v. Weigle, 997 A.2d 306, 311 (Pa. 2010), citing
Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005).
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Here, because the gun was not found on Mitchell’s person, the
Commonwealth was required to prove that Mitchell had constructive
possession over the gun. Commonwealth v. Macolino, 469 A.2d 132, 134
(Pa. 1983). To prove constructive possession, the Commonwealth must
show that the accused “exercise[d] a conscious dominion over the illegal
[contraband.]” Commonwealth v. Valette, 613 A.2d 548, 550 (Pa. 1992).
Conscious dominion is the “power to control the contraband and the intent to
exercise that control.” Id., citing Commonwealth v. Mudrick, 507 A.2d
1212, 1213 (Pa. 1986).
The trial court found that the Commonwealth did not present a prima
facie case because “mere presence at the scene where a gun is found is not
sufficient to show such possession.” Trial Court Opinion, 3/10/15, at 4,
citing Commonwealth v. Boatwright, 453 A.2d 1058, 1059 (Pa. Super.
1982). However, in Boatwright, the appellant was sitting in the front
passenger seat of a car with another individual in the driver’s seat when an
officer saw him move toward the left rear of the car, where a gun was later
recovered from the floor of the vehicle. Id. at 1058. The Court found that
Boatwright did not have constructive possession over the gun because the
Commonwealth did not provide sufficient evidence to prove that he had the
power or intent to possess the firearm. Id. at 1059.
The trial court also concluded that, because the gun was found in a
shared, common area of the house, where several individuals could access
it, “it is impossible to infer that [Mitchell] meant to control the gun, or even
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that he necessarily had the ability to do so.” Trial Court Opinion, 3/10/15,
at 5. However, the Commonwealth may demonstrate that Mitchell had joint
constructive possession of the firearm, which means that more than one
person can have control and access to the contraband. Commonwealth v.
Davis, 480 A.2d 1035, 1045 (Pa. Super. 1984). Joint constructive
possession can be inferred from the totality of the circumstances. Id. For
example, in Commonwealth v. Macolino, 469 A.2d 132, (Pa. 1983), the
court found that “it was reasonable for the fact-finder to conclude that the
appellee maintained a conscious dominion over the cocaine found in the
bedroom closet which he shared solely with his wife.” Id. at 136. The Court
also noted that the law prohibiting possession of contraband would not make
sense if a person could store the contraband in a shared space to avoid
prosecution. Id.
Here, the firearm was found in a shared space, in plain view, and was
accessible to three adults living in the house. Given the totality of the
circumstances, it is reasonable to infer that Mitchell, a resident of the house,
had at least joint constructive possession of the firearm. Mudrick, 507 A.2d
at 1214 (holding that equal access to cocaine found in plain view could be
found by jury to be constructive possession); see Commonwealth v.
Patterson, 591 A.2d 1075, 1078 (Pa. Super. 1991) (taking judicial notice
that drug dealers in Philadelphia are often armed). The police observed
Mitchell dealing drugs outside his home, and saw him enter and exit the
property multiple times. The firearm was found on a table directly inside the
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doorway to the house. Accordingly, we find that it is reasonable to infer that
Mitchell had at least joint constructive possession of the firearm, and that
the Commonwealth presented a prima facie case to establish the possession
of firearms prohibited and PIC charges. Accordingly, the trial court erred in
granting Mitchell’s motion to quash.
Order reversed. Case remanded for proceedings consistent with the
dictates of this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2015
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