Com. v. Cruz, N. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
NICHOLAS CRUZ : No. 358 EDA 2019
Appeal from the Order Entered January 4, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): MC-51-CR-0022212-2018.
BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: DECEMBER 29, 2020
The Commonwealth appeals from the order dismissing the charges filed
against Nicholas Cruz. We reverse and remand for further proceedings.
The trial court set forth the factual history as follows.
On August 28, 2018, at approximately 7:00 p.m., Officer
[Robert] Filler and Officer Toribio conducted a vehicle
investigation on a 1997 white Chevrolet, on the 2700 block of 6th
Street, in the city and county of Philadelphia, due to an inoperable
top brake light. . . . Cruz was the driver of the vehicle and was the
sole occupant. When the officers pulled [Cruz] over, they
conducted a check through the VIN number. . . . As a result, the
vehicle came back with temporary tags from Delaware. [Cruz]
was not the registered owner of the vehicle and the tags were not
in his name.
As Officer Filler approached the passenger side with the
passenger [window] down, he smelled fresh marijuana. At some
point, [Cruz] said he was nervous because he smoked marijuana
earlier that day. Still, the officers did not order [Cruz] out the
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* Retired Senior Judge assigned to the Superior Court.
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vehicle. Although the officers smelled fresh marijuana, Officer
Filler also testified that [Cruz] was 100% cooperative. There was
no evasive or suspicious behavior from [Cruz] when the police
pulled him over up until the end of the investigation. The officers
saw an ankle bracelet on [Cruz’s] ankle and continued to ask
[Cruz] questions about his whereabouts and the vehicle in
question. Throughout the line of questioning, [Cruz] gave the
officers a business card that identified the tire shop he worked for
and explained to them that he was in the process of repair [of]
the vehicle’s tire. The shop was down the street and was owned
by [Cruz’s] stepfather. Finally, the officers decided to remove
[Cruz] from the vehicle and placed him in the police car. On the
passenger floorboard, the police officers found a closed black bag,
containing a handgun and $13,000. Inside of the bag, the officers
found a sales receipt for the handgun that was in someone other
than [Cruz’s] name. In addition, Officer Filler testified that no
personal effects of [Cruz’s] were found in the vehicle.
Trial Court Opinion, 7/30/19, at 1-2 (citations to the record omitted).
Following this incident, police arrested Cruz and charged him with
violations of the Uniform Firearms Act (“VUFA”) under 18 Pa.C.S.A. §§ 6105,
6106, and 6108. The matter proceeded to a preliminary hearing, which the
magisterial district court conducted on October 3, 2018. At the conclusion of
the hearing, the magisterial district court held that the Commonwealth had
not presented sufficient evidence to establish a prima facie case, and
dismissed the VUFA charges for lack of evidence.
The Commonwealth thereafter filed a motion in the Court of Common
Pleas to refile the VUFA charges against Cruz, and also sought to amend the
criminal complaint to include a possession of marijuana charge under 35
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Pa.C.S.A. § 780-113(a)(31).1 At the outset of the hearing, the trial court ruled
that the complaint could be amended to include the drug possession charge.
The Commonwealth then introduced Officer Filler’s body cam video (“BCV”)
into evidence, which the court viewed during the hearing. At the conclusion
of the hearing, the trial court denied the motion to refile. The Commonwealth
filed a timely notice of appeal. Both the Commonwealth and the trial court
complied with Pa.R.A.P. 1925.
The Commonwealth raises the following issue for our review: “Did the
court err in ruling that there was insufficient evidence for a prima facie case
of three counts of violation of the Uniform Firearms Act and possession of
marijuana?” Commonwealth Brief at 4 (statutory citations omitted).
Our Supreme Court has held that “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 505, 513 (Pa. 2005)
(citation omitted).
At the preliminary hearing stage of a criminal prosecution, the
Commonwealth’s burden is not to prove a defendant’s guilt beyond a
reasonable doubt; rather, it is merely to put forth a prima facie case of the
defendant’s guilt.” Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa.
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1 Incident to the traffic stop, police arrested Cruz and conducted a search of
his person, which revealed a small amount of marijuana.
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2003). A prima facie case exists where the Commonwealth produces evidence
to establish “each of the material elements of the crime charged and
establishes sufficient probable cause to warrant the belief that the accused
committed the offense.” Id. 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. Id. Inferences reasonably
drawn from the evidence of record which would support a verdict of guilty are
to be given effect, and the evidence must be read in the light most favorable
to the Commonwealth’s case. Commonwealth v. Nieves, 876 A.2d 423,
424 (Pa. Super. 2000). The weight and credibility of the evidence is not a
factor at this stage. Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa. Super.
2017).
A preliminary hearing is not a mini-trial, and a preliminary hearing judge
is not a trier of fact. Thus, the 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 pretrial prima facie burden to make out
the elements of a charged crime. Karetny, 880 A.2d at 513.
We turn first to the firearm charges. Here, the Commonwealth charged
Cruz with VUFA offenses under 18 Pa.C.S.A. §§ 6105, 6106 and 6108. The
elements of those offenses are as follows. A person is guilty of possessing a
firearm by a prohibited person if he possesses a firearm after having been
convicted of a crime rendering him ineligible to do so. See 18 Pa.C.S.A. §
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6105. A person is guilty of carrying a firearm without a license if he carries a
firearm in a vehicle without a valid and lawfully issued license. See id. at §
6106(a)(1). A person is guilty of carrying a firearm in public if he carries a
firearm at any time on a public street without a license to do so. See id. at §
6108.
When a firearm is not discovered on a defendant’s person, or in their
actual possession, the Commonwealth may prove the defendant had
constructive possession of the firearm.
Constructive possession is a legal fiction, a pragmatic
construct to deal with the realities of criminal law enforcement.
Constructive possession is an inference arising from a set of facts
that possession of the contraband was more likely than not. We
have defined constructive possession as conscious dominion. We
subsequently defined conscious dominion as the power to control
the contraband and the intent to exercise that control.
Commonwealth v. Hopkins, 67 A.3d 817, 820-21 (Pa. Super. 2013)
(quoting Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012)
(internal quotation marks and citation omitted)). “An intent to maintain a
conscious dominion may be inferred from the totality of the circumstances,
and circumstantial evidence may be used to establish a defendant’s
possession of drugs or contraband.” Commonwealth v. Harvard, 64 A.3d
690, 699 (Pa. Super. 2013) (citation omitted). Constructive possession cases
are fact-sensitive; “a review of case law pertaining to constructive possession
indicates the difficulty of drawing bright lines in this area of the law.”
Commonwealth v. Stembridge, 579 A.2d 901, 904 (Pa. Super. 1990).
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Evidence that the defendant has been in a vehicle where a firearm is
found is not sufficient by itself to prove constructive possession if the firearm
is in a location over which the defendant lacks control or there is no evidence
that the defendant knew that the firearm was there. See Commonwealth
v. Armstead, 305 A.2d 1, 2 (Pa. 1973). At the least, the evidence must show
that the defendant knew of the existence of the item. Commonwealth v.
Hamm, 447 A.2d 960, 962 (Pa. Super. 1982). Individually, the circumstances
may not be decisive; but, in combination, they may justify an inference that
the accused had both the power to control and the intent to exercise that
control, which is required to prove constructive possession. Commonwealth
v. Carter, 450 A.2d 142, 144 (Pa. Super. 1982)
The Commonwealth argues that the trial court failed to view the
evidence with all reasonable inferences in favor of the Commonwealth at the
preliminary hearing stage, and explicitly and improperly made credibility
determinations. The Commonwealth maintains that the evidence established
that Cruz was the driver and sole occupant of the vehicle in which a bag,
located on the floor just to the right of his leg and within his arm’s reach,
contained $13,000 and a gun. The Commonwealth argues that all of these
factors, viewed together in the light most favorable to the Commonwealth,
were at least sufficient to submit to a fact-finder at trial and, thus, to support
a prima facie case of the VUFA charges.
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The Commonwealth further argues that Cruz’s intent to exercise
conscious control and dominion of the firearm was further corroborated by his
statements to police. The Commonwealth points out that, when initially asked
by police why he was nervous, Cruz said it was because he had previously
smoked marijuana. Commonwealth Brief at 14 (citing N.T., 10/3/18, at 6).
However, once Officer Filler recovered the gun and the $13,000 in the black
bag, he returned to the police car with the bag, handcuffed Cruz, and asked
him, “that’s why you’re nervous, man?” Id. (citing BCV 9:48-10:12). Cruz
replied, “yea.” Id. Cruz also admitted to knowing that there was exactly
$13,000 in the bag. Id. (citing N.T., 10/3/18, at 8). The Commonwealth
maintains that Cruz’s admissions demonstrate both consciousness of guilt and
knowledge of the bag’s contents. The Commonwealth argues that these
incriminating statements support a prima facie case that the bag and its
contents belonged to Cruz, and that he constructively possessed the firearm.
Finally, the Commonwealth asserts that the trial court erred by drawing
speculative and defense-friendly inferences that Cruz simply was coming from
work at the nearby garage that he and his stepfather owned when he was
pulled over by police. The Commonwealth argues that by making inferences
in favor of Cruz rather than in favor of the Commonwealth, at the preliminary
hearing stage of the proceedings, the lower court committed reversible error.
In its Pa.R.A.P. 1925(a) opinion, the trial court considered the
Commonwealth’s issue and concluded that it properly denied the motion to
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refile charges because the Commonwealth failed to establish that Cruz had
actual or constructive possession of the firearm, knowledge of the firearm in
the bag, and an intent to exercise control over it. The trial court reasoned as
follows.
Here, there are no personal effects that belong to [Cruz]
whatsoever. Moreover, there was no paperwork, on the record,
to support a finding that the vehicle was registered to or
purchased by [Cruz]. In fact, the Officer Filler testified that the
car had temporary Delaware tags on it and [Cruz] was not found
to be the registered owner of the vehicle. Additionally, . . . the
handgun in this case, was concealed in a black bag on the
passenger side. Although [Cruz] was the sole occupant in the
vehicle, nothing on the record suggests that he exercised
conscious dominion over the handgun. Inside the bag was a sales
receipt for the handgun that was in someone other than [Cruz’s]
name. In our case, it can be inferred that [Cruz] was coming from
work, at the shop that he and his stepfather owned, when he was
pulled over by police for a Motor Vehicle Violation. The shop was
about a block and a half from where [Cruz] was pulled over and
[Cruz] stated he was getting the tire fixed. Therefore, [Cruz]
could not have had constructive possession of the handgun found
in a closed bag on the passenger side of the vehicle.
****
The Commonwealth [also] failed to show [Cruz] displayed a
consciousness of guilt. While [Cruz] was the sole occupant of the
vehicle, the record does not support that he had knowledge of the
firearm or that he the intent to control it. . . . [Cruz] was 100%
cooperative during the investigation and did not show any evasive
behavior. This is in direct contrast with the defendant[] in
[Commonwealth v. Cruz, 21 A.3d 1247 (Pa. Super. 2011)] . . .,
where the police observed [the] defendant[] moving in the
direction where the contraband was found.[2] Furthermore,
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2 In Cruz, this Court concluded that the evidence was sufficient to establish
that the defendant had constructive possession of a gun where he was the
only person in the vehicle and the police officer observed him moving toward
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[Cruz], in our case, did not use any evasive tactics such as
avoiding being identified by the police, as the defendant did in
Cruz, by given [sic] the officer four or five different names and
dates of birth. In fact, [Cruz] in this present case gave the officers
a business card that identified the shop he worked for and
explained to them what he was doing prior to being stopped. . .
. Moreover, [Cruz] did not attempt to flee the scene . . . Based
on the totality of circumstances and viewing the evidence in light
most favorable to the Commonwealth, there is insufficient
evidence to show that the defendant had knowledge of the firearm
in the bag and intent to exercise control over said firearm.
Trial Court Opinion, 7/30/19, at 5-6, 8-9 (footnote added).3
As noted above, in order to determine whether the Commonwealth has
put forth a prima facie case, the evidence must be read in the light most
favorable to the Commonwealth’s case, and all inferences reasonably drawn
from the evidence of record which would support a verdict of guilty are to be
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where the gun was found (in a compartment on the passenger side of the
vehicle). The defendant also gave the police officer multiple names and
birthdates, thereby exhibiting a consciousness of guilt. See Cruz, 21 A.3d at
1253.
3 In reaching its conclusion, the trial court relied on two non-precedential
unpublished memorandum decisions by this Court; namely, Commonwealth
v. Talbert, 121 A.3d 1117 (Pa. Super. 2015) (unpublished memorandum),
and Commonwealth v. Perez, 159 A.3d 57 (Pa. Super. 2016) (unpublished
memorandum). See Trial Court Opinion, 7/30/19, at 5-6, 8-9. While
Pa.R.A.P. 126 was recently amended to permit trial courts and parties to cite
non-precedential unpublished memorandum decisions of this Court for their
persuasive value, the amendment pertains to decisions filed after May 1,
2019. See Order Amending Rule 126 of the Pennsylvania Rules of Appellate
Procedure, No 278 (Pa. 2019); see also 210 Pa. Code § 65.37. As the two
non-precedential unpublished memorandum decisions relied on by the trial
court were filed before May 2, 2019, they have no persuasive authority.
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given effect. Nieves, 876 A.2d at 424. Applying this standard, we observe
the following based on our independent review of the record.
At the hearing on the motion to refile the charges against Cruz, the
Commonwealth presented the notes of testimony from the preliminary
hearing, which were incorporated into the trial court record. N.T., 1/4/19, at
5. Notably, the preliminary hearing transcript established that, on the date in
question, Cruz was the operator and sole occupant of the vehicle on a street
in Philadelphia. N.T., 10/3/18, at 5. The vehicle had temporary Delaware
tags on it. Id. at 9. Cruz told the officers that he “has a business and that
they purchase cars.” Id. at 27. Cruz further indicated that the vehicle he was
driving was a newly purchased vehicle, and that the car was part of the
business. Id. at 27, 29. The officers ran the VIN number of the vehicle, and
discovered that, although Cruz was not the registered owner of the vehicle,
the vehicle was in temporary registration status. Id. at 8, 13. The VIN report
that the officers received did not indicate who applied for the temporary
registration status. Id. at 8, 13.
When Officer Filler approached the vehicle, he smelled fresh marijuana.
Id. at 6, 15. A small black bag, described as a “fanny pack,” was located on
the front floorboard, approximately one foot away from Cruz’s right leg, in the
direction of the front passenger side of the vehicle. Id. at 7-8, 17, 18. Cruz
told the officers that the bag contained $13,000. Id. at 8. The bag contained
exactly $13,000 in cash and a firearm. Id. at 6. Cruz did not have a license
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to carry the firearm. Id. at 8. The Commonwealth also introduced Cruz’s
criminal record, which reflected that he had a prior conviction which made him
ineligible to possess a firearm. Id. at 31.
At the refile hearing, the Commonwealth also introduced a body camera
video of the traffic stop. N.T., 1/4/19, at 13. The video begins as the officers
approached Cruz’s vehicle, which Cruz had pulled over in the entrance to a
tire lot. See BCV, 8/28/18, at 00:01. In the video, Cruz told the officers that
he purchased the vehicle in Delaware. Id. at 8:14. Cruz further indicated
that he temporarily registered the vehicle, and was waiting for a stamp. Id.
at 10:30. Cruz additionally told the officers that he obtained insurance for the
vehicle. Id. at 10:50.
Cruz further explained that the vehicle had a “cracked” and “dry rotted”
front tire, and that he was coming from his nearby body shop to get the tire
changed. Id. at 8:42; 10:03; 11:03; 11:08. Cruz indicated that, due to the
condition of the tire, he had to fill the tire with air each morning. Id. at 11:11.
Cruz told police that he was nervous, and police observed that Cruz was
extremely nervous. Id. at 13:16. When asked by police why he was so
nervous, Cruz initially indicated that it was because he smoked a blunt earlier
in the day. Id. After Officer Filler placed Cruz in the back of the police Cruiser,
he went back to the vehicle and, while standing outside the driver’s side of
the vehicle, reached over the driver’s seat and picked up the black bag. Id.
at 14:32. When Officer Filler opened the bag, he found the gun and the
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$13,000 in cash. Id. Officer Filler returned to the police cruiser with the bag
and asked Cruz if the bag was the cause of his nervousness. Id. at 17:31.
Cruz responded in the affirmative. Id.
Our review of the evidence produced at the hearings, viewed in the light
most favorable to the Commonwealth and accepted as true at this juncture,
leads us to conclude that the Commonwealth presented sufficient evidence to
establish a prima facie case as to the VUFA charges filed against Cruz.
Cruz was the driver and sole occupant of the vehicle where the firearm
was found. Cruz told police that he purchased the vehicle, obtained insurance
for the vehicle, and that he was waiting for the registration process to be
completed. Police confirmed that the ownership of the vehicle was in a
temporary status, but did not have access to information regarding the
identity of the individual who applied for temporary ownership status. Cruz
told officers that the vehicle had a damaged tire which he had to fill up with
air every morning. These facts support an inference that Cruz, in fact, owned
or at least maintained control over the vehicle.
The evidence also supported an inference that Cruz had knowledge of
the firearm located in the car. Cruz told police that the bag contained $13,000
in cash. Police confirmed that the bag contained exactly $13,000 in cash.
Based on Cruz’s knowledge of the exact amount of currency located within the
bag, the Commonwealth was entitled to an inference that Cruz owned or
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possessed the bag, and that he had knowledge of the other contents of the
bag, including the firearm.
Further, the evidence supported an inference that Cruz exercised control
over the firearm. The firearm was positioned near Cruz’s feet, making it easily
within his reach. Where contraband has been found within the reach of a
defendant, as it was here, our Court has concluded that there was sufficient
evidence to find constructive possession. See Commonwealth v. Samuels,
340 A.2d 880 (Pa. Super. 1975); see also Commonwealth v. Ferguson,
331 A.2d 856 (Pa. Super. 1974) (holding that the location of contraband in an
area usually accessible only to a defendant may lead to the inference that he
placed it there or knew of its presence if others did so); Commonwealth v.
Kirkland, 831 A.2d 607 (Pa. Super. 2003) (holding sufficient evidence
established defendant’s constructive possession of contraband found in
vehicle; even though defendant did not own vehicle and arresting officers did
not see defendant in vehicle, where defendant’s wife told officers defendant
had arrived in vehicle, defendant possessed keys to vehicle, and contraband
was located in area defendant could access).
Finally, Cruz’s demeanor during the stop supports an inference that he
constructively possessed the firearm. Cruz was visibly nervous, and ultimately
attributed the cause of his nervousness to the contents of the bag. These
facts suggest consciousness of guilt. See Commonwealth v. Hughes, 865
A.2d 761, 792 (Pa. 2004) (holding that “[t]he conduct of an accused following
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a crime, including ‘manifestations of mental distress,’ is admissible as tending
to show guilt”) (quoting, in part, Commonwealth v. Homeyer, 94 A.2d 743,
747 (Pa. 1953) (holding that “mental distress, fear at the time of or just before
or just after discovery of the crime” are indicators of guilt)); see also
Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011);
Commonwealth v. Donelly, 653 A.2d 35, 37 (Pa. Super. 1995).
Under the totality of these circumstances, viewed in the light most
favorable to the Commonwealth and accepted as true at the preliminary
hearing stage of the proceedings, we conclude that the Commonwealth
presented sufficient evidence to establish a prima facie case as to the VUFA
charges filed against Cruz.
We further conclude that, in arriving at its determination, the trial court
failed to view the evidence in the light most favorable to the Commonwealth,
and instead, viewed the evidence and all reasonable inferences therefrom in
favor of Cruz.4 The trial court also considered matters wholly irrelevant to
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4 For example, the absence of documentation establishing that Cruz was the
registered owner of the vehicle on the date of the traffic stop, and the absence
of Cruz’s personal effects in the vehicle (i.e., bills, mail) should not have been
viewed in the light most favorable to Cruz, particularly where Cruz repeatedly
indicated to police that he owned and insured the vehicle, and that it was
temporarily registered to him.
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the charges in question.5 Accordingly, we conclude that the trial court erred
in denying the Commonwealth’s request to refile the VUFA charges.
We turn next to the Commonwealth’s claim that the trial court erred in
denying its motion to refile the drug possession charge against Cruz.
Relevantly, a person is guilty of possessing a small amount of marijuana if he
possesses thirty grams or less of marijuana for personal use. See 35 P.S. §
780-113(a)(31).
At the refile hearing, the Commonwealth established that a search of
Cruz’s person incident to his arrest revealed a bag of marijuana on his person.
N.T., 1/4/19, at 11-12. The parties stipulated that the amount of marijuana
was approximately one gram. See id. at 13.
The Commonwealth contends that the trial court erred in denying the
motion to refile with respect to the drug possession charge on the basis that
the court failed to conduct a prima facie analysis, and instead focused on
theoretical and premature suppression issues. According to the
Commonwealth, the trial court appeared to conclude that the search of the
vehicle was impermissible under our Supreme Court’s plurality decision in
Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (adopting the federal
automobile exception to the warrant requirement and permitting officers to
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5 For example, whether Cruz was the owner of the firearm was irrelevant, as
he was charged with VUFA offenses related to possession of a firearm, not
ownership. Further, where Cruz was coming from or going to was also
irrelevant to the VUFA charges in question.
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search a vehicle when there is probable cause to do so). The Commonwealth
argues that such a legal analysis is irrelevant to the sufficiency of a prima facie
case at a preliminary hearing because a defendant can later move for
suppression in a motion before the trial court. The Commonwealth asserts
that a preliminary hearing court may not simply exclude certain evidence from
the prima facie record by speculating about its future admissibility.
Finally, the Commonwealth contends that the trial court improperly
made a credibility finding when it concluded that Officer Filler could not have
reasonably smelled fresh marijuana emanating from Cruz’s vehicle based on
the small amount of marijuana that was sealed in a plastic bag. The
Commonwealth asserts that the trial court committed reversible error by
making a credibility determination at the preliminary hearing stage. According
to the Commonwealth, because police recovered the marijuana from Cruz’s
person after his arrest, the Commonwealth established a prima facie case for
his actual possession of marijuana.
The trial court undertook an extensive explanation of the factual and
legal underpinnings at issue in Gary. The court then provided the following
analysis.
Here, when the police officers smelled marijuana emanating
from the vehicle, they did not immediately conduct a search.
Instead, the police officers went on a fishing expedition in
attempts to elicit possible criminal statements. They continued to
ask [Cruz] questions about his whereabouts, and therefore, did
not base their arrest on the smell alone. The police officers went
beyond the scope of Gary and should not have continued to
question [Cruz]. Furthermore, it was not until after numerous
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preliminary hearings that the Commonwealth decided to amend
[Cruz’s] charges to include possession of marijuana. It is also
crucial to note that the amount of marijuana recovered was
approximately one gram, sealed in a sandwich bag. To state that
[Officer Filler] could smell one gram of marijuana emanating from
outside the vehicle, calls to question the credibility of the officer.
Therefore, this Court finds that [Cruz] cannot be held for the
charge of possession.
Trial Court Opinion, 7/30/19, at 10.
As noted above, at the preliminary hearing stage of criminal
proceedings, the question is not whether there is sufficient admissible
evidence to prove the defendant guilty beyond a reasonable doubt; rather,
the question is whether the prosecution must be dismissed because there is
nothing to indicate that the defendant is connected with a crime. See
Commonwealth v. Rick, 366 A.2d 302, 303-04 (Pa. Super. 1976). This
Court has further held that:
[I]n light of the critical nature of the preliminary hearing in
assuring that the Commonwealth has a legal basis for prosecuting
a person, the better course may be for the Commonwealth,
whenever possible, to produce evidence to establish its prima facie
case that would also be admissible at trial. However, there is no
requirement that the Commonwealth do so in all instances.
See Commonwealth v. Troop, 571 A.2d 1084, 1088 (Pa. Super. 1990); see
also Commonwealth v. Wojdak, 466 A.2d 991, 995 (Pa. 1983) (holding
that the prima facie standard does not require that the Commonwealth prove
the elements of the crime beyond a reasonable doubt nor that evidence is
available that would prove each element at trial beyond a reasonable doubt).
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Moreover, our Rules of Criminal Procedure contemplate that suppression
issues are to be addressed after the preliminary hearing stage of the
proceedings. Rule 578 provides that all pretrial requests for relief shall be
included in one omnibus pretrial motion, and identifies a motion to suppress
as a type of relief appropriate for the omnibus pretrial motion. See
Pa.R.Crim.P. 578. Rule 579 provides that “the omnibus pretrial motion for
relief shall be filed and served within 30 days after arraignment, unless
opportunity therefor did not exist, or the defendant or defense attorney, or
the attorney for the Commonwealth, was not aware of the grounds for the
motion.” Pa.R.Crim.P. 579(A) (emphasis added).
Here, if Cruz believed that the officers did not have probable cause to
arrest him and search his vehicle, he could have filed a motion to suppress on
that basis after the charges had been bound over for court. It was not the
role of the trial court, on a motion to refile charges, to determine suppression
issues at the preliminary hearing phase of the proceedings.
Further, as we have explained, the weight and credibility of the evidence
is not a factor at the preliminary hearing stage. Hilliard, 172 A.3d at 10.
Thus, the trial court had no discretion in ascertaining whether Officer Filler’s
testimony regarding his ability to smell fresh marijuana upon approaching
Cruz’s vehicle was credible. Karetny, 880 A.2d at 513.
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For these reasons, we conclude that the trial court committed reversible
error in denying the Commonwealth’s motion to refile the charge of possession
of a small amount of marijuana.
Based on the foregoing, we reverse the order of the trial court, and
remand for further proceedings consistent with this memorandum.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/20
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