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

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

ZAHIR SMITH
Appellee : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1395 EDA 2021 Appeal from the Order Entered June 24, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0002780

- 2021

BEFORE: OLSON, J., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JULY 8, 2022
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Philadelphia County Court of Common Pleas, which dismissed
firearms and conspiracy charges filed against Appellee, Zahir Smith. We

reverse and remand.

The trial court set forth the relevant facts of this appeal as follows:
Philadelphia Police Officer Jonathan Arch testified that, in the early hours of May 31, 2020, he received a radio call for a burglary in progress at a shopping center located at 3000 Island Ave nue in the city and county of Philadelphia. Officer Arch arrived at that location at approximately 2:45 a

. m

. , where he observed a white Nissan Altima, which did not have a license plate, speeding through the shopping plaza. The vehicle hit a curb and bec ame disabled, at which time a male, alleged to be [Appell ee ] exited from the driver side door. Subsequently, one female, alleged to be Julisa Prak ... exited the front passenger door, and another woman, alleged to be Jarenny Ros ..., fled from the rear of the vehicle. The officer ordered [Ms. Ros] to stop, and placed her in custody in the back of his patrol car. Officer ArchJ

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- testified that he observed that the windows and doors of the Snipes store at the shopping center were all broken, and that he observed clothing and sneakers in and around the whi t e Altima. On cross examination, Officer Arch stated that there was a riot taking place in the shopping center at the time he encountered the defendants , and that many people were looting stores in that location. He further testified that he did not see the white Altima or the defendants themselves near the Snipes store, that there are several stores in the shopping center in question, and that many of those stores also appeared to have been looted. The officer positively identified all three defendants as the individuals he encountered fleeing the white Altima.
Philadelphia Police Detective Francesco Campbell testified that on the date in question, he executed a search warrant on the vehicle. Inside was a large amount of merchandise from the Snipes store. He indicated that he knew it was from Snipes because a store employee identified the merchandise from its tags, and estimated its value in the thousands of dollars. Officers also recovered a firea rm from underneath the merchandise.
(Trial Court Opinion, filed 9/ 7 / 21, at 1

- 2).
On April 8, 2021, the court conducted a preliminary hearing, and
Appellee and his co

- defendants’ cases were held for court. On April 20, 2021,

the Commonwealth filed a criminal information charging Appellee with
burglary, criminal trespass, theft by unlawful taking, receiving stolen property,
conspiracy, violations of the Uniform Firearms Act (“VUFA”) , and possessing

an instrument of crime (“PIC”)

. Appellee’s co

- defenda nts subsequently filed
motions “to quash bills of information,” which asserted that the

Commonwealth had failed to establish a prima facie case against them

. Although Appellee did not file a motion , his counsel appeared a t the June 24,

2021 e videntiary h e aring on the pretrial motions. At that time, Appellee’sJ

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counsel joined in the co

- defendants’ motions by arguing that the court should

also dismiss the c harges against Appellee

. Specifically , Appellee’s counsel

insisted that “ [ t ] he weapon is in the back seat, and there was a passenger in
the back seat, and identification was also recovered in the back seat .” (N.T.
Evidentiary Hearing, 6/24/21 , at 6).
Immediately f ollowing the hearing , the court dismissed the VUFA and
conspiracy charges against Appellee. The Commonwealth timely filed a notice
of appeal on July 8, 2021 , under Pa.R.A.P. 311(d)

. 1 On July 21, 2021, the
court ordered the Commonwealth to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The Comm onwealth timely filed
its Rule 1925(b) statement on July 26, 2021.

The Commonwealth now raises one issue for our review:
Did sufficient evidence support a prima facie case for the charges of [VUFA] and conspiracy, where [Appellee] and his two female co
- defendants were observed fleeing the scene of the crime, a Snipes retail store; the windows to the store had been broken; goods belonging to the store were found scattered throughout the car [Appellee] had been driving; and a gun was found in the back seat underneath the stolen goods ?
(Commonwealth’s Brief at 6).
The following principles apply to this Court’s review of an order granting

_________________ __________ ______ ____ _______

1 See Pa.R.A.P. 311(d) (stating that in criminal case, Commonwealth may take appeal as of right from order that does not end entire case where Commonwealth certifies in notice of appeal that order will terminate or substantially handicap prosecution).J

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a pretrial petition for writ of habeas corpus :

We review a decision to grant a pre

- trial petition for a writ of habeas corpus by examining the evidence and reasonable inferences derived therefrom in a light most favorable to the Commonwealth. Whether the Commonwealth satisfied its burden of establishing a prima facie case for each charged crime is a question of la w, to which this Court ’ s standard of review is de novo and our scope of review is plenary.

A pre

- trial habeas corpus motion is the proper means for testing whether the Commonwealth has sufficient evidence to establish a prima facie case. To demonstrate that a prima facie case exists, the Commonwealth must produce evidence of every material element of the charged offense(s) as well as the defendant ’ s complicity therein. To meet its burden, the Commonwealth may utilize the evidence presented at the preliminary hearing and also may submit additional proof.

Commonwealth v. Wyatt , 203 A.3d 1115, 1117 (Pa.Super. 2019) (internal
citations and quotation marks omitted).

“T he Commonwealth establishes a prima facie case when it produces
evidence that, if accepted as true , would warrant the trial judge to allow the
case to go to a jury.” Commonwealth v. Ouch , 199 A.3d 918, 923
(Pa.Super. 2018) ( emphasis in original ). “The Co mmonwealth need not prove
the elements of the crime beyond a reasonable doubt; rather, the prima facie
standard requires evidence of the existence of each and every element of the
crime charged.” Id.
On appeal, the Commonwealth argues that the facts established at
Appell ee’s preliminary hearing “supported an inference that [Appellee] had
knowledge of the gun, had the power to exercise control of the gun, and,J

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therefore, had constructive possession of the gun .” (Commonwealth’s Brief

at 14). Fur the r , the Commonwealth asserts that the evidence permit t ed “ an
inference of an agreement among the three occupants of the car, with a
shared intent of burglarizing the Snipes store.” ( Id. at 17). T he

Commonwealth maintains that it established a prima fac ie case for the VUFA
and conspiracy charges against Appellee. T he Commonwealth concludes that

this Court must reverse the order dismissing the charges against Appellee.
We agree.
The Pennsylvania Crimes Code defines the offense of criminal conspiracy

as follows:

§ 903. Criminal c onspiracy
(a) Definition of conspiracy.

— A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

* * *
(c) Conspiracy with multiple criminal objectives.

— If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.J

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18 Pa.C.S.A. § 903(a), (c).

“ To sustain a conviction for criminal conspiracy, 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. Melvin , 103 A.3d 1, 42 (Pa.Super. 2014)
(citation omitted).

The essence of a criminal co nspiracy 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. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariab ly extracted from the circumstances that attend its activities. Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co

- conspirators sufficiently prove the forma tion of a criminal confederation. The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt.

Id. at 42

- 43. “ Once the trier of fact fi nds that there was an agreement and
the defendant intentionally entered into the agreement, that defendant may
be liable for the overt acts committed in furtherance of the conspiracy
regardless of which co

- conspirator committed the act. ” Commonwealth v.

B arnes , 871 A.2d 812, 820 (Pa.Super. 2005) , aff ’ d , 592 Pa. 301, 924 A.2d
1202 (2007)

. Further, the Uniform Firearms Act provides, in relevant part, as follows:J

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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.

* * *
§ 6107. Prohibited conduct during emergency
(a) General Rule.

— No person shall carry a firearm upon the public streets or upon any public property during an emergency proclaimed by a State or municipal governmental executive unless that person is:

(1) Actively engaged in a defense of that person’s life or property from peril or threat.
(2) Licensed to carry firearms under section 6109 (relating to licenses) or is exempt from licensing under section 6106(b) (relating to firearms not to be carried without a license).

* * *
§ 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.A. §§ 6106(a)(1), 6107(a), and 6108.J

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“When contraband is not found on the defendant ’ s person, the

Commonwealth must establish constructive possession

... .” Commonwealth

v. Jones , 874 A.2d 108, 121 (Pa.Super

. 2005). “ 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. ” Commonwealth v. Parrish , 191 A.3d 31, 36 (Pa.Super

. 2018),
appeal denied , 651 Pa. 10, 202 A.3d 42 (2019) (internal quotation marks
omitted). “ The intent to exercise conscious dominion can be inferred from the
totality of the circumstances.” Jones , supra at 121. “Constructive
possession may be found in o ne or more actors where the item in issue is in
an area of joint control and equal access.” Commonwealth v. Valette , 531
Pa. 384, 388, 613 A.2d 548, 550 (1992).

It is well established that, a s with any other element of a crime, constructive possession m ay 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 , supra at 36

- 37 (in ternal citations and quotation marks omitted).
Instantly, Officer Arch arrived at the scene in response to a burglary

call. ( See N.T. Preliminary Hearing, 4/8/21, at 6)

. Upon arrival , the officer
observed a Nissan Altima speed through the shopping plaza and hit a curb

. ( Id. ) Appellee , who occupied the driver’s seat, exited the Nissan with his co

defendants and fled. ( Id. at 7). At the preliminary hearing, Officer Arch made

an in

- co urt identifi cation of Appellee and his co
- defendants. ( Id. at 5 )

.J

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Regarding the conspiracy charge , police apprehended Appellee and his

co
- defendants after they fled from the Nissan. Police subsequently obtained
a warrant, searched the Nissan, and discovered items belonging to the Snipes
store. ( Id. at 6

- 7). The Snipes store appeared to have been bu rglarized , as
its windows and doors were broken. ( Id. at 6). Although the Commonwealth
did not present evidence of an explicit agreement between Appellee and h is

co
- defendants, their conduct and circumstances made it reasonable to infer

the existence of a shared criminal intent

. See Melvin, supra

. Taken
together, the facts established a prima facie case for conspiracy. See Wyatt,

supra

.
A s for the VUFA charges, Officer Arch testified that his interaction with
Appellee and his co
- defendants occurred during a “riot” in the midst of a

COVID

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- related “shut down” in Philadelphia. ( See N.T. Preliminary Hearing
at 12, 14). Further, police found a firearm in the backseat of the Nissan , underneath merchandise from the Snipes store

. ( Id. at 21). Detective
Campbell testified that Appellee did not have a license to carry a firearm. ( Id.
at 22). Since Appellee was the driver of the Nissan , it i s reasonable to infer

that he could have exercised conscious dominion over the firearm. See
Parrish, supra . Therefore , the Commonwealth presented sufficient evidence

to establish a prima facie case for the VUFA charges under the theory of
constructive possession. See W yatt, supra

. Our review of the testimony produced at the preliminary hearing, viewedJ

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in the light most favorable to the Commonwealth, leads us to conclude that
the Commonwealth presented sufficient evidence to establish a prima facie

case as to the VUFA and conspiracy charges filed against Appellee. See
Wyatt, supra ; Ouch, supra . Accordingly, we reverse the order granting
Appellee habeas corpus relief, and we remand this case for further
proceedings consistent with this decision

. Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/8/2022