J-S31021-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, 

 Appellant 

 v.

MICHAEL J. HARRIS, 

 Appellee 

: IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

: 

: 

: 

: 

: 

: 

: No. 1867 EDA 2013 

Appeal from the Order Entered May 23, 2013, 

In the Court of Common Pleas of Philadelphia County, 

Criminal Division, at No. CP-51-CR-0009270-2012. 

BEFORE: BOWES, SHOGAN and MUSMANNO, JJ. 

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 04, 2014 

Appellant, the Commonwealth of Pennsylvania (“the Commonwealth”), 

appeals from the order entered on May 23, 2013, that quashed five of the 

six criminal charges filed against Appellee, Michael J. Harris, prior to trial.1

 

We reverse and remand for further proceedings. 

 The trial court set forth the factual history of this matter as follows: 

On July 20, 2012 at 8 pm, Philadelphia Police Officer 

Marvin Ruley observed [Appellee], standing with Darryl G[]ass at 

the north eight hundred block of 43rd Street in Philadelphia. N.T. 

8 6/2012 at 4-5. [Appellee] and Mr. G[]ass engaged in brief 

transactions with two individuals while standing next to a black 

[J]eep. Id. at 6. One of these individuals, Helen White, was 

subsequently stopped, and four packets of what was allegedly 

cocaine were found on her person. Id. At or around 8:15pm, 

 

1

“An order dismissing criminal charges prior to trial is appealable by the 

Commonwealth.” Commonwealth v. McBride, 595 A.2d 589, 590 n.3 (Pa. 

1991); Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005). 
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[Appellee] was observed getting into a gold Chrysler [Cir]rus and 

driving away Id. at 7. [Appellee] was subsequently stopped, and 

$254 was recovered from his person. Mr. Gass was also stopped, 

and no contraband was found on his person. Id. at 7-8. Officers 

then approached the black [J]eep, where they found a purple 

container, containing nineteen red tinted packets, on the 

windshield. Officers were able to see a similar packet on the floor 

of the [J]eep through the window. Id. at 8. They then secured a 

search warrant, and recovered one red tinted packet of crack 

cocaine, one clear bag containing fifty red packets of crack 

cocaine, and a .32 caliber Smith & Wesson handgun from inside 

the vehicle. Id. at 8-9, 20. 

Trial Court Opinion, 8/22/13, at 1-2.

The Commonwealth charged Appellee with one count each of 

possession of controlled substance with intent to deliver (“PWID”), firearms 

not to be carried without a license, possession of a controlled substance, 

carrying a firearm in public in Philadelphia, possession of an instrument of 

crime (“PIC”), possession of firearm by a felon, and one count of conspiracy 

to commit PWID. On September 26, 2012, the Commonwealth withdrew the 

conspiracy to commit PWID charge, and the balance of the charges were 

bound over for court. 

On December 26, 2012, Appellee filed a motion to quash the 

remaining six charges. In an order filed on May 23, 2013, the trial court 

granted Appellee’s motion and quashed all of the charges except possession 

of a firearm by a felon. 

The Commonwealth filed a timely appeal and on appeal raises the 

following issue for this Court: 
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Did the lower court err in quashing charges where the evidence 

was sufficient to establish a prima facie case of firearms 

violations and possession of a controlled substance with intent to 

deliver? 

The Commonwealth’s Brief at 4. 

The decision to grant a motion to quash criminal charges is within the 

discretion of the trial court and will be reversed on appeal only where there 

has been an abuse of that discretion. Commonwealth v. Weigle, 949 A.2d 

899, 902 (Pa. Super. 2008) (citations omitted). 

Judicial discretion requires action in conformity with law, upon 

facts and circumstances judicially before the court, after hearing 

and due consideration. An abuse of discretion is not merely an 

error of judgment, but if in reaching a conclusion the law is 

overridden or misapplied or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill 

will, as shown by the evidence or the record, discretion is 

abused. 

Commonwealth v. McCullough, 86 A.3d 896, 898 (Pa. Super. 2014) 

(citation and quotation marks omitted). 

 Our scope of review is limited to determining whether the 

Commonwealth established a prima facie case. Commonwealth v. 

Patrick, 933 A.2d 1043, 1045 (Pa. Super. 2007) (citation omitted). The 

Commonwealth is required to establish sufficient probable cause to show 

that the defendant committed the offense, and the evidence should be such 

that if presented at trial, and accepted as true, the judge would be 

warranted in allowing the case to go to the jury. Id. 
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When deciding whether a prima facie case was established, we 

must view the evidence in the light most favorable to the 

Commonwealth, and we are to consider all reasonable inferences 

based on that evidence which could support a guilty verdict. The 

standard ... does not require that the Commonwealth prove the 

[defendant’s] guilt beyond a reasonable doubt at this stage.

Id. (citations and quotation marks omitted). The prima facie case standard 

requires evidence of each element of the crime charged, and weight and 

credibility of the evidence are not factors at this stage of proceedings. Id. 

(citing Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001)). 

This standard does not require the Commonwealth to prove the defendant’s 

guilt beyond a reasonable doubt at this stage. McCullough, 86 A.3d at 899 

(citing Commonwealth v. Landis, 48 A.3d 432, 444 (Pa. Super. 2012)). 

 While the record in this matter discloses that Appellee was not 

arrested in actual physical possession of the firearm or cocaine, actual 

physical possession is not required for conviction. A person may be 

convicted of a possessory offense if the Commonwealth establishes 

constructive possession. 

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.” To aid application, we have held that constructive 

possession may be established by the totality of the 

circumstances. 

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (quoting

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004)). 
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Constructive possession can be proven by circumstantial evidence and the 

“requisite knowledge and intent may be inferred from examination of the 

totality of the circumstances.” Commonwealth v. Clark, 746 A.2d 1128, 

1136 (Pa. Super. 2000) (quoting Commonwealth v. Haskins, 677 A.2d 

328, 330 (Pa. Super. 1996)). 

Here, the Commonwealth was required to establish sufficient probable 

cause that Appellee committed the following criminal acts: 

Prohibited acts; penalties 

(a) The following acts and the causing thereof within the 

Commonwealth are hereby prohibited: 

* * * 

(16) Knowingly or intentionally possessing a 

controlled or counterfeit substance by a person not 

registered under this act, or a practitioner not 

registered or licensed by the appropriate State 

board, unless the substance was obtained directly 

from, or pursuant to, a valid prescription order or 

order of a practitioner, or except as otherwise 

authorized by this act. 

35 P.S. § 780-113(a)(16). 

Prohibited acts; penalties 

(a) The following acts and the causing thereof within the 

Commonwealth are hereby prohibited: 

* * * 

(30) Except as authorized by this act, the 

manufacture, delivery, or possession with intent to 

manufacture or deliver, a controlled substance by a 
J-S31021-14

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person not registered under this act, or a practitioner

not registered or licensed by the appropriate State 

board, or knowingly creating, delivering or 

possessing with intent to deliver, a counterfeit 

controlled substance. 

35 P.S. § 780-113(a)(30). 

Possessing instruments of crime

(a) Criminal instruments generally.--A person commits a 

misdemeanor of the first degree if he possesses any instrument 

of crime with intent to employ it criminally. 

18 Pa.C.S.A. § 907. 

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. 

18 Pa.C.S.A. § 6106(a)(1). 

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). 
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18 Pa.C.S.A. § 6108. 

In the instant case, the record reflects that Officer Marvin Ruley 

testified that he saw Appellee engage in multiple exchanges of small items 

for U.S. currency while he was standing next to a Jeep Cherokee. N.T., 

8/6/12, at 5-9. One of the people who made such an exchange with 

Appellee, Helen White, was immediately apprehended and found in 

possession of four red-tinted packets of suspected crack cocaine. Id. at 6. 

During these exchanges, Appellee and his cohort, Mr. Gass, were positioned 

next to, in front of, or behind the Jeep. Id. at 5-9. When Appellee was 

apprehended, he was found in possession of $254.00 but no narcotics. Id. 

at 7-8. However, when officers approached the Jeep next to which Appellee 

had been standing while he engaged in the aforementioned hand to hand 

exchanges, they saw a purple plastic container. Id. at 8. This purple 

container, which looked like a chewing gum container, was wrapped in black 

tape. Id. at 8, 16. The container was not inside the Jeep, but rather it was 

sitting outside the vehicle on the windshield next to the wiper blades. Id. at 

16. Inside this container were nineteen red-tinted packets of suspected 

crack cocaine, similar to those found on Helen White. Id. at 6, 8. The 

discovery of this cache of suspected crack cocaine led the officers to obtain a 

search warrant for the Jeep, and as mentioned above, more suspected crack 
J-S31021-14

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cocaine, which was also wrapped in red-tinted plastic, was discovered inside 

the Jeep along with a firearm. Id. at 20. 

Officer Paul Perez testified that in securing the search warrant for the 

Jeep, he learned that it was registered in the name of Michael Harris, which 

is Appellee’s name. N.T., 8/6/12, at 21. A dispute arose as to whether 

Appellee was the owner of the Jeep or whether his son, Michael Harris Jr., 

was the owner. Id. Regardless, what is clear is that the Jeep was not 

owned by an unknown third party. The dispute over ownership does not 

support dismissal of the charges because, even if the Jeep was owned by 

Appellee’s son, it is reasonable to conclude that it was within Appellee’s 

control. Thus, a dispute over ownership of the Jeep was not a basis for 

dismissal of the charges at the preliminary hearing stage of the proceedings. 

After reviewing the evidence presented at the preliminary hearing in 

the light most favorable to the Commonwealth as we must, we conclude that 

there was sufficient probable cause to show that Appellee committed the 

aforementioned possessory offenses, such that, if presented at trial, and 

accepted as true, the judge would be warranted in allowing the case to go to 

the jury. Patrick, 933 A.2d at 1045. To view the evidence otherwise would 

be to view it in the light most favorable to Appellee. That would cause this 

Court to accept that it was nothing more than coincidence that a container of 

suspected crack cocaine, packaged identically to the packets found on Helen 
J-S31021-14

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White and inside the Jeep, was simply sitting on the windshield of a vehicle 

next to which Appellee was exchanging money for small objects. Based on 

our standard of review, we cannot reach that conclusion. 

Accordingly, we are constrained to reverse the order dismissing the 

charges against Appellee, and we remand for further proceedings. We offer 

no opinion as to whether the Commonwealth will ultimately be able to prove 

the charges against Appellee beyond a reasonable doubt as that is not the 

standard to be applied at this juncture. McCullough, 86 A.3d at 899. 

 Order reversed. Case remanded for further proceedings. Jurisdiction 

relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/4/2014