J-A13035-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

ZAHIR SMITH

Appellee

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 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 Avenue 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 became disabled, at which time a 

male, alleged to be [Appellee] 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 Arch 
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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 

white 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 firearm 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-defendants 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 at the June 24, 

2021 evidentiary hearing on the pretrial motions. At that time, Appellee’s 
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counsel joined in the co-defendants’ motions by arguing that the court should 

also dismiss the charges 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 following 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 Commonwealth 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 

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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). 
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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 law, 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). 

“The 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 Commonwealth 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 

Appellee’s preliminary hearing “supported an inference that [Appellee] had 

knowledge of the gun, had the power to exercise control of the gun, and, 
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therefore, had constructive possession of the gun.” (Commonwealth’s Brief 

at 14). Further, the Commonwealth asserts that the evidence permitted “an 

inference of an agreement among the three occupants of the car, with a 

shared intent of burglarizing the Snipes store.” (Id. at 17). The 

Commonwealth maintains that it established a prima facie case for the VUFA 

and conspiracy charges against Appellee. The 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 conspiracy

(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. 
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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 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. 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 

invariably 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 formation 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 finds 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.

Barnes, 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:
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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. 
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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 one 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, 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, supra at 36-37 (internal 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 codefendants and fled. (Id. at 7). At the preliminary hearing, Officer Arch made 

an in-court identification of Appellee and his co-defendants. (Id. at 5). 
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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 burglarized, as 

its windows and doors were broken. (Id. at 6). Although the Commonwealth 

did not present evidence of an explicit agreement between Appellee and his

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. 

As 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-19-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 is 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 Wyatt, supra. 

Our review of the testimony produced at the preliminary hearing, viewed 
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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