J-S15039-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

JEREMIAH OSHEA IRVING

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1629 WDA 2019

Appeal from the Order Entered October 9, 2019

In the Court of Common Pleas of Beaver County Criminal Division at 

No(s): CP-04-CR-0000896-2019

BEFORE: BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 3, 2020

The Commonwealth of Pennsylvania appeals from the Order entered in 

the Court of Common Pleas of Beaver County on October 9, 2019, granting 

Appellee Jeremiah Oshea Irving’s motion for habeas corpus relief for lack of 

prima facie evidence with regard to charges of: receiving stolen property; 

possession of firearm prohibited; conspiracy to commit receiving stolen 

property; possession with intent to deliver a controlled substance; conspiracy 

to commit possession with intent to deliver a controlled substance; 

possession, and possession of drug paraphernalia.

1 These charges stemmed 

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* Former Justice specially assigned to the Superior Court.

1 The Commonwealth does not challenge herein the trial court’s decision as to 

the receiving stolen property, possession of firearm prohibited and conspiracy 

to commit receiving stolen property charges. 
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from the execution of a search warrant on February 1, 2019. Following a 

careful review, we reverse and remand for further proceedings.2 

Our review of the certified record reveals that following an investigation 

of three individuals: Donald Williams, Robert Cook, and Appellee, Trooper 

Joshua Fachet obtained and executed a search warrant for the area of 4600 

4

th Avenue, Apartments 3 and 4, in Beaver Falls, Pennsylvania. At the 

Preliminary Hearing held on April 30, 2019, Trooper Fachet testified that upon 

entering Apartment 4 after executing that warrant on February 1, 2019, the 

Pennsylvania State Police Special Emergency Response Team (SERT) located 

several individuals therein. N.T. Preliminary Hearing, 4/30/19, at 8. When 

he ultimately arrived, Trooper Fachet observed four men, including Appellee, 

in the dining room and Williams, who was lying in the doorway between the 

dining room and kitchen; SERT already had taken Cook from the scene. Id. 

at 9, 12. 

A Vice Unit police officer on the scene notified Trooper Fachet that two, 

clear, knotted baggies, one of which contained suspected crack cocaine and 

the other of which contained two baggies of a white, powdery substance that 

was believed to be cocaine, were found in the toilet. Id. at 10. Trooper Fachet 

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2 The Commonwealth has perfected its interlocutory appeal from the Order 

granting Appellee’s suppression motion in that its notice of appeal contains 

the requisite statement certifying that the Order would “substantially handicap

the prosecution” pursuant to Pa.R.A.P. 311(d) and 904(e).
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estimated a total amount of two to three ounces of cocaine was contained in 

the baggies. Id. 

On the kitchen countertop, Trooper Fachet observed a Pyrex cup and 

baking soda along with a stainless steel knife stained with white residue. In 

Trooper Fachet’s experience, such items are used to make crack cocaine. Id. 

at 11. A scale with a small piece of a white chunky substance on it was found 

near Cook and Appellee in the dining room. Id. Trooper Fachet found a stolen 

handgun in the living room and recovered $1,700 from Appellee’s person and 

$1,800 from Williams. Id. at 12. 

In the only bedroom of the home, Trooper Fachet observed a small, 

knotted baggie containing suspected crack cocaine and a crack pipe in the top, 

right dresser drawer. Id. at 13. Also therein were items bearing Cook’s name 

and the address of the apartment. Id. 

Prior to the execution of the search warrant, police had conducted 

surveillance on the residence. Id. at 23, 27. Trooper Fachet explained that 

he “kn[e]w for sure that [Appellee] was observed coming and going 

throughout the surveillance.” Id. In fact, police took photographs of Appellee 

in front of the apartment building days before February 12, 2019. N.T., 

10/1/19, at 10. 

Trooper Fachet filed a criminal complaint on February 1, 2019, charging 

Appellee with the following seven counts: Receiving Stolen Property; 

Conspiracy to Commit Receiving Stolen Property; Possession of a Firearm; 

Possession with Intent to Deliver; Conspiracy to Commit Possession with 
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Intent to Deliver; Possession and Possession of Drug Paraphernalia. On June 

10, 2019, the Commonwealth filed a criminal information charging Appellee 

with the same seven counts. On July 19, 2019, Appellee filed a counselled 

Omnibus Pre-Trial Motion for Relief wherein he requested a grant of habeas 

corpus due to a lack of sufficient evidence. 

On October 1, 2019, the trial court held a Pre-Trial hearing at which 

time Trooper Fachet provided additional testimony. Specifically, he explained 

that surveillance at 4600, 4th Avenue, Apartment 4 identified Appellee 

repeatedly entering and exiting the residence, and photographs of him doing 

so were taken throughout January 22-23, 2019. N.T. 10/1/19, at 9-10. Also, 

the search of the apartment revealed a court document and a shipping label 

bearing Cook’s name and the Apartment 4 address, and while detained, Cook 

admitted he resided in the apartment. Id. at 12-13. Trooper Fachet also 

commented upon the approximately $1,700 and $1,800 found on Appellee 

and Williams respectively. In doing so, he noted that based upon his training 

and experience “individuals will allow dealers or drug traffickers to utilize their 

apartment for many reasons, for payment or also through controlled 

substances, various reasons, so it’s not unusual that the owner of the 

residence is not holding a lot of money.” Id. at 38.

In its October 9, 2019, Order the trial court granted, in part, Appellee’s 

suppression motion. The Commonwealth filed a timely notice of appeal on 

November 1, 2019. Although the trial court did not direct the Commonwealth 
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to file a concise statement of the matters complained of on appeal pursuant 

to Pa.R.A.P. 1925(b), the trial court filed a Rule 1925(a) Opinion on November 

21, 2019. Therein, it indicated that it had determined it set forth the reasons 

for the appealed Order in its Opinion and Order dated and entered on October 

9, 2019; therefore, no further Opinion would be forthcoming. 

In its appellate brief, the Commonwealth presents the following question 

for our review: 

1. Whether the trial court erred in ruling that the evidence was 

insufficient for a prima facie case as to possession with intent 

to deliver, conspiracy to commit[] possession with intent to 

deliver, possession and possession of drug paraphernalia. 

Brief of Appellant at 7 (unnecessary capitalization omitted). 

The Commonwealth argues that the trial court erred in determining it 

had failed to present prima facie evidence Appellee constructively possessed 

any of the contraband found in Apartment 4. The Commonwealth stresses 

Appellee may be deemed to have the requisite control over the contraband 

even though other individuals were present in the apartment, especially in 

light of the fact that he was found in close proximity to the manufacturing 

materials. Id. at 20. The Commonwealth further contends the totality of the 

evidence, including the large quantity of drugs found in the nearby toilet and 

fact that Appellee had approximately $1,700 on his person, reveals that he

knew about and participated in the manufacturing of narcotics in the 

apartment. Id. at 20, 22.

At the outset, we recognize: 
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In reviewing a trial court’s order granting a defendant’s petition 

for writ of habeas corpus, we must generally consider whether the 

record supports the trial court’s findings, and whether the 

inferences and legal conclusions drawn from those findings are 

free from error. A trial court may grant a defendant’s petition for 

writ [of] habeas corpus after a preliminary hearing where the 

Commonwealth has failed to present a prima facie case against 

the defendant.

Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa.Super. 2017) (quotation 

marks and citations omitted). Further:

The evidentiary sufficiency of the Commonwealth’s case, or lack 

thereof, is a question of law; as such, our scope of review is 

plenary. Commonwealth v. Karetny, [ ] 880 A.2d 505, 528 ( 

[Pa.] 2005). We have previously described the well-settled 

principles governing preliminary hearings, as well as the 

Commonwealth’s concomitant burden, as follows:

The purpose of a preliminary hearing is to 

determine whether the Commonwealth has made out a 

prima facie case for the offenses charged. A prima facie

case consists of evidence, read in the light most 

favorable to the Commonwealth, that sufficiently 

establishes both the commission of a crime and that the 

accused is probably the perpetrator of that crime.

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. 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. 

Moreover, the weight and credibility of the evidence are 

not factors at this stage, and the Commonwealth need 

only demonstrate sufficient probable cause to believe 

that the person charged has committed the offense.

Commonwealth v. Ouch, 199 A.3d 918, 923 (Pa. Super. 2018) 

[ ].
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Commonwealth v. Perez, 220 A.3d 1069, 1075 (Pa.Super. 2019) (en banc) 

(emphasis and footnote omitted), appeal granted on other grounds, March 2, 

2020. 

 Furthermore, “[t]o 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.” 

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016) 

(citation omitted). The Commonwealth may sustain its burden of proving 

every element of the crime(s) by means of wholly circumstantial evidence. 

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011). However, 

“we have also noted that suspicion and conjecture are not evidence and are 

unacceptable as such.” Commonwealth v. Holston, 211 A.3d 1264, 1269 

(Pa.Super. 2019) (en banc) (citation omitted). “Where the Commonwealth’s 

case relies solely upon a tenuous inference to establish a material element 

of the charge, it has failed to meet its burden of showing that the crime 

charged was committed.” Id. (citation omitted, emphasis in original). “To 

meet its burden, the Commonwealth may utilize the evidence presented at 

the preliminary hearing and also may submit additional proof.” Dantzler, 135 

A.3d at 1112 (citation omitted).

To establish possession and possession of drug paraphernalia the 

Crimes Code requires, respectively: 

Knowing or intentionally possessing a controlled ... 

substance by a person not registered under this Act, or a 
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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). 

The use of, or possession with intent to use, drug 

paraphernalia for the purpose of planting, propagating, 

cultivating, growing, harvesting, manufacturing, compounding, 

converting, producing, processing, preparing, testing, analyzing, 

packing, repacking, storing, containing, concealing, injecting, 

ingesting, inhaling, or otherwise introducing into the human body 

a controlled substance in violation of this Act.

35 P.S. § 780-113(a)(32).

In addition, Possession with Intent to Deliver (PWID) is defined as 

follows: 

Except as authorized by this act, the manufacture, delivery, or 

possession with intent to manufacture or deliver, a controlled 

substance by a person not registered under this act, or a 

practitioner not registered or licenses 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). This Court has explained the evidence necessary 

to sustain a PWID conviction under 35 P.S. § 780-113(a)(30) as follows:

The Commonwealth establishes the offense of [PWID] when 

it proves beyond a reasonable doubt that the defendant possessed

a controlled substance with the intent to deliver it.

To determine whether the Commonwealth presented 

sufficient evidence to sustain [a defendant’s] conviction for 

[PWID], all of the facts and circumstances surrounding the 

possession are relevant and the elements of the crime may be 

established by circumstantial evidence. Furthermore, possession

with intent to deliver can be inferred from the quantity of the 

drugs possessed along with the other surrounding circumstances.
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Commonwealth v. Little, 879 A.2d 293, 297 (Pa.Super. 2005) (internal 

citations omitted). Moreover, 

[w]ith regard to the intent to deliver, we must examine the facts 

and circumstances surrounding the possession. The intent to 

deliver may be inferred from possession of a large quantity of 

controlled substances. It follows that possession of a small 

amount of a controlled substance supports the conclusion that 

there is an absence of intent to deliver. If the quantity of the 

controlled substance is not dispositive as to the intent, the court 

may look to other factors.

Other factors to consider when determining whether a 

defendant intended to deliver a controlled substance include the 

manner in which the controlled substance was packaged, the 

behavior of the defendant, the presence of drug paraphernalia, 

and the sums of cash found in possession of the defendant. The 

final factor to be considered is expert testimony. Expert opinion 

testimony is admissible concerning whether the facts surrounding 

the possession of controlled substances are consistent with an 

intent to deliver rather than with an intent to possess it for 

personal use.

Commonwealth v. Roberts, 133 A.3d 759, 768 (Pa.Super. 2016) (internal 

citation omitted), appeal denied, 636 Pa. 675, 145 A.3d 725 (Pa. 2016). 

Possession may be proved “by showing actual possession, constructive

possession, or joint constructive possession.” Commonwealth v. Hall, 199 

A.3d 954, 960 (Pa.Super. 2018), appeal denied, 206 A.3d 1028 (Pa. 2019).

Constructive possession is the ability to exercise a conscious 

dominion over the contraband. It usually comes into play when 

police find contraband somewhere other than on the defendant's 

person. Constructive possession requires proof that the defendant 

had knowledge of the existence and location of the item. The 

Commonwealth may prove such knowledge circumstantially. That 

is, it may prove that the defendant had knowledge of the existence 

and location of the items at issue from examination of the totality 

of the circumstances surrounding the case, such as whether the 

contraband was located in an area usually accessible only to the 

defendant.
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For the Commonwealth to prove constructive possession

where more than one person has access to the contraband, the 

Commonwealth must introduce evidence demonstrating either the 

defendant’s participation in the drug-related activity or evidence 

connecting the defendant to the specific room or areas where the 

drugs were kept.

Id. at 961 (cleaned up).

Finally: 

A person is guilty of conspiracy with another person 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.

18 Pa.C.S.A. § 903(a). 

In its brief Opinion filed on October 9, 2019, the trial court provides 

scant reasoning in support of its decision pertaining to the charges the 

Commonwealth challenges herein. Instead, the court focuses primarily upon 

the firearms charges. It does find that evidence Appellee actually made or 

even was aware of an agreement to deliver controlled substances was lacking 

because “[m]ere presence at the scene of a crime or knowledge of it is 

insufficient absent [Appellee] knowingly entering an agreement to 

participate.” Trial Court Opinion, filed 10/9/19, at 3. In granting Appellee’s

petition for habeas corpus as to intentional possession of a controlled 

substance, the court states that the search warrant was for an apartment of 

which Appellee is not a lessee and “[n]othing was found on [Appellee].” Id. 

at 5. 
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Contrary to the trial court’s holding, the Commonwealth is permitted to 

establish Appellee’s constructive possession via circumstantial evidence and 

the reasonable inferences that arise therefrom. Commonwealth v. Parrish, 

191 A.3d 31, 36 (Pa.Super. 2018), appeal denied, 202 A.3d 42 (Pa. 2019). 

Viewing the evidence presented at both hearings in a light most favorable to 

the Commonwealth, we disagree with the trial court and find that, at a 

minimum, the Commonwealth presented a prima facie case to establish 

constructive possession as to possession with intent to deliver, possession,

and possession of drug paraphernalia.

In the days prior to and on the day of the execution of the search 

warrant at 4600, 4th Avenue, Apartment 4, Appellee was identified and 

photographed entering and exiting the apartment building. This behavior 

indicates a familiarity with Apartment and suggests that Appellee’s presence 

there on February 1, 2019, was not just happenstance. 

During the execution of the warrant, Appellee was in the dining room 

with Cook and Williams, and a scale topped with suspected cocaine was found 

on the dining room table. In a nearby toilet, a bag containing two to three 

ounces of cocaine was recovered. A search of the kitchen revealed a Pyrex 

cup, a stainless steel knife stained with white residue and baking soda; 

Trooper Fachet indicated such items were used to make crack cocaine. 

Significantly, a search of Appellee recovered $1,700.00, while Williams was 

found to possess over $1,800.00. 
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In light of this, it cannot be said definitively that Appellee was merely

present in the apartment with others and, therefore, lacked the requisite 

control of these items. To the contrary, it may be inferred form Appellee’s 

close proximity to the contraband and previously-observed behavior in and 

around the apartment building that he constructively and jointly possessed 

the same. This, coupled with the fact that he possessed a large sum of money, 

is prima facie evidence he was aware of and a participant in the manufacturing 

of narcotics in the apartment. See Parrish, supra. 

The same holds true with regard to the possession with intent to deliver

charge. As stated previously, a court may consider such factors as the way 

in which drugs are packaged, a defendant’s behavior, the presence of drug 

paraphernalia, the sum of cash found in his possession, and expert testimony 

when determining whether he had an intent to deliver drugs, rather than 

possess them for personal use. See Roberts, supra. Trooper Fachet 

commented upon the significant quantity of cocaine found in the toilet bowl, 

the way in which it was packaged, and the paraphernalia located in the kitchen 

as evincing an intent to sell the drugs. Each of these items was in close 

proximity to Appellee in the apartment. Also, the large sum of cash found on 

Appellee’s person and his activity around the apartment led Trooper Fachet to 

comment that: “individuals will allow dealers or drug traffickers to utilize their 

apartment for many reasons, for payment or also through controlled 

substances, various reasons . . . .” N.T., 10/1/19, at 38. In light of all the 
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foregoing, we find the trial court erred in dismissing the possession, 

possession of drug paraphernalia, and PWID charges.

Finally, we further disagree with the trial court’s finding that the record 

lacks prima facie evidence of a shared criminal intent among Appellee and his 

codefendants to establish conspiracy to commit PWID. A criminal conspiracy

is proven upon the establishment of an agreement, shared criminal intent, 

and an overt act in furtherance of the agreement. See Commonwealth v. 

Johnson, 180 A.3d 474, 479 (Pa.Super. 2018) (citing, inter alia, 18 Pa.C.S. 

§ 903). As this Court has explained,

[a]n 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. Even if the conspirator did 

not act as a principal in committing the underlying crime, he is 

still criminally liable for the actions of his co-conspirators taken in 

furtherance of the conspiracy.

Id. (cleaned up).

From the previously discussed web of evidence, viewed in the light most 

favorable to the Commonwealth, we find the Commonwealth established a 

prima facie case that the interactions among Appellee, Cook and Williams

evince a shared criminal intent to package and sell cocaine over which the 

three men exercised conscious dominion and control. 
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Prior to the execution of the search warrant, police observed Appellee 

entering and exiting numerous areas of the apartment building as well as 

Cook’s residence. When officers entered Apartment 4, Appellee, Cook and 

Williams were found in the same room and in close proximity to the drugs and 

other contraband. Appellee and Williams each had a large sum of cash on his 

person, and Trooper Fachet explained that in his training and experience he 

had learned that an individual often allows a drug dealer to utilize his or her 

apartment to further the illegal enterprise. This circumstantial evidence 

establishes, at a minimum, that the Commonwealth put forth a prima facie

case of conspiracy to commit possession with intent to deliver. See

Commonwealth v. Jones, 874 A.2d 108, 122 (Pa.Super. 2005) (ruling 

circumstantial evidence of relationship with other occupant of a vehicle and 

joint access to contraband was sufficient to sustain conspiracy conviction). 

Accordingly, we reverse the Order granting Appellee habeas corpus 

relief and remand for trial. 

Order Reversed. Case Remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/3/2020
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