J-A11001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

KEITH HARRIS,

Appellee No. 2525 EDA 2014

Appeal from the Order Entered July 30, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): MC-51-CR-0048044-2013

BEFORE: SHOGAN, MUNDY, and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 13, 2016

The Commonwealth appeals from the order denying its motion to refile 

criminal charges against Appellee, Keith Harris, in the above-captioned 

matter after the court of common pleas determined the Commonwealth 

failed to present a prima facie case to permit a trial. Upon careful review, 

we reverse.

We summarize the procedural history of this case as follows. In the 

early evening of December 19, 2013, Philadelphia Police were conducting 

surveillance in the 2900 block of Kip Street when they observed Appellee’s 

involvement with Ricardo Correa to the extent that they believed Appellee 

was participating in the sale of narcotics with Mr. Correa. On December 20, 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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2013, Appellee was charged with possession of a controlled substance, 

possession of a controlled substance with intent to deliver, and conspiracy.

At a preliminary hearing held before the Honorable Nazario Jimenez of 

the Municipal Court of Philadelphia County on April 16, 2014, the charges 

brought against Appellee were dismissed due to lack of evidence.1 On 

May 16, 2014, the Commonwealth filed a notice of refiling of the criminal 

complaint against Appellee. On July 30, 2014, a preliminary hearing was 

conducted before the Honorable Harold M. Kane of the Court of Common 

Pleas of Philadelphia County. At the close of the hearing, Judge Kane denied 

the Commonwealth’s motion to refile the charges against Appellee. The 

Commonwealth then filed a motion for reconsideration on August 1, 2014, 

which was never addressed. Thereafter, on August 28, 2014, the 

Commonwealth filed this timely appeal.2

The Commonwealth presents the following issue for our consideration:

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1

 It is well settled that “[a] magistrate’s decision to dismiss criminal charges 

after a preliminary hearing is unappealable.” Commonwealth v. Carbo, 

822 A.2d 60, 64 (Pa. Super. 2003) (citation omitted). “Therefore, the 

reinstitution of charges is the only recourse available to the Commonwealth 

after it fails to establish a prima facie case at a preliminary hearing.” Id. As 

will be discussed infra, the Commonwealth refiled the charges against 

Appellant, and the July 30, 2014 order from which it is now appealing 

essentially dismissed those charges for a second time.

2

 Although not ordered to do so by the trial court, on August 28, 2014, the 

Commonwealth filed a Pa.R.A.P. 1925(b) statement. The trial court has not 

prepared an opinion pursuant to Pa.R.A.P. 1925(a).
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Properly viewed in the light most favorable to the 

Commonwealth, did the evidence at the preliminary hearing 

establish a prima facie case of possession of narcotics with intent 

to deliver and conspiracy?

Commonwealth’s Brief at 4.

The Commonwealth argues that the court of common pleas erred in 

denying the Commonwealth’s motion to refile the charges against Appellee, 

claiming that it established a prima facie case that Appellee conspired with 

Mr. Correa to sell drugs. The Commonwealth points to the evidence that 

Appellee accepted a large sum of cash from Mr. Correa, repeatedly entered 

an abandoned home that contained 140 vials of crack cocaine, as well as 

thirty packets of heroin and $370.00, and that Appellee “stood watch” on a 

street corner while Mr. Correa sold drugs to two individuals. The 

Commonwealth claims that the trial court’s failure to find that Appellee’s 

actions amounted to the statutory definition of conspiracy was legal error. 

We are constrained to agree.

We begin by noting that “[t]he question of the evidentiary sufficiency 

of the Commonwealth’s prima facie case is one of law,” and as such, our 

review is plenary. Commonwealth v. Huggins, 836 A.2d 862, 865 (Pa. 

2003). In Huggins, our Supreme Court explained:

At the pre-trial stage of a criminal prosecution, it is not 

necessary for the Commonwealth to prove the defendant’s guilt 

beyond a reasonable doubt, but rather, its burden is merely to 

put forth a prima facie case of the defendant’s guilt. A prima 

facie case exists when the Commonwealth produces evidence of 

each of the material elements of the crime charged and 

establishes sufficient probable cause to warrant the belief that 
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the accused committed the offense. 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 go to the jury. 

Moreover, “[i]nferences 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.”

Huggins, 836 A.2d at 866 (citations omitted).

Here, the Commonwealth charged Appellee with the crimes of 

possession of narcotics, possession with intent to deliver, and criminal 

conspiracy. Regarding the crime of possession with intent to deliver, we 

have stated the following:

To establish the offense of possession of a controlled substance 

with intent to deliver, the Commonwealth must prove beyond a 

reasonable doubt that the defendant possessed a controlled 

substance with the intent to deliver it. The intent to deliver can 

be inferred from an examination of the surrounding facts and 

circumstances. Factors to consider in determining whether the 

drugs were possessed with the intent to deliver include the 

particular method of packaging, the form of the drug, and the 

behavior of the defendant.

The Commonwealth has the option to establish actual or 

constructive possession. 

Constructive possession requires proof of the ability 

to exercise conscious dominion over the substance, 

the power to control the contraband, and the intent 

to exercise such control. Constructive possession 

may be established by the totality of the 

circumstances.

Commonwealth v. Perez, 931 A.2d 703, 707-708 (Pa. Super. 2007) 

(citations and quotation marks omitted).
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Further, with regard to the crime of criminal conspiracy we have 

stated:

Circumstantial evidence may provide proof of the 

conspiracy. The conduct of the parties and the 

circumstances surrounding such conduct may create 

a “web of evidence” linking the accused to the 

alleged conspiracy beyond a reasonable doubt. 

Additionally:

An agreement can be inferred from a 

variety of circumstances including, but 

not limited to, the relation between the 

parties, knowledge of and participation in 

the crime, and the circumstances and 

conduct of the parties surrounding the 

criminal episode. These factors may 

coalesce to establish a conspiratorial 

agreement beyond a reasonable doubt 

where one factor alone might fail.

“While the Commonwealth is not required to prove a written or 

express agreement, a tacit agreement must be established by 

reasonable inferences arising from the facts and circumstances 

and not by mere suspicion or conjecture.” Circumstances like an 

association between alleged conspirators, knowledge of the 

commission of the crime, presence at the scene of the crime, 

and/or participation in the object of the conspiracy, are relevant 

when taken together in context, but individually each is 

insufficient to prove a conspiracy.

Perez, 931 A.2d at 708. Thus, even if a defendant was not the principal 

actor in a drug transaction, he would be guilty of the underlying crime based 

upon actions taken by co-conspirators in furtherance of the commission of 

the crime. See Commonwealth v. McCall, 911 A.2d 992, 997 (Pa. Super. 

2006) (evidence sufficient to sustain possession with intent to deliver and 

conspiracy convictions where the defendant stood watch during drug 
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transactions and received proceeds even though the defendant never 

handled drugs).

The facts, as presented to the trial court at the July 30, 2014 hearing, 

are as follows:

The facts of this case are [Mr. Correa] is seen by police 

officers counting United States currency which [Mr. Correa] gives 

to [Appellee] at the beginning of this case.

This is approximately 7:15 PM, police officers are 

observing [Mr. Correa] and [Appellee] on the street.

When [Mr. Correa] hands the money to [Appellee] he says 

there you go that’s $115.00 to [Appellee].

[Appellee] takes the money. The two are standing outside 

of an abandoned property.[3] They go into the abandoned 

property together, Your Honor, and then they come out 

approximately one to two minutes later.

When they come out of the abandoned property together 

what happens is they go to the street corner and a buyer 

approaches.

Two sales take place at that time, Your Honor. Both sales 

are done by [Mr. Correa]. One of those buyers [is] stopped and 

has on their person -- oh, one other factor that I need to 

mention is when they come out of this abandoned property they 

don’t have anything in their hands when they go in. When they 

come out [Mr. Correa] is handling a clear bag.

[Mr. Correa] does the two sales from that clear bag. So 

both of the sales are --

* * *

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3

 At the hearing on April 16, 2014, the police officer described the 

abandoned property as having no electricity, no windows, and being strewn 

with trash. N.T., 4/16/14, at 5.
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Actually, [Mr. Correa] is holding it in his mouth initially 

when he walks out the door, Your Honor. But [Mr. Correa is] 

holding the bag and they do two sales from the corner from this 

bag. Again, that’s [Mr. Correa].

However, the second buyer is stopped, Your Honor, and 

drugs are recovered from that buyer. They are two black vials of 

cocaine with black caps on them.

What happens next is [Appellee] is again seen counting

money after the second sale. Immediately afterwards he is seen 

counting money standing next to [Mr. Correa].

[Appellee] then goes into the abandoned property again 

for one additional minute, Your Honor. [Appellee] comes back 

out. After that, Your Honor, there is another sale. What 

happens next is police officers go in to stop [Mr. Correa] and 

[Appellee].

Off of [Mr. Correa] they find eight matching vials of 

cocaine on his person with the black caps on them. They also 

find $100.00 United States currency.

In the property, inside the abandoned property, twenty 

feet from the door there is a hole in the floor. There is one 

hundred and forty vials of cocaine, Your Honor, and thirty 

packets of heroin, too. They matched the cocaine that’s sold 

and they matched the other cocaine that is recovered.

And they also find $370.00 United States currency in bags 

on the floor, Your Honor.[4] So those are the facts of this case.

N.T., 7/30/14, at 3-6.

Upon review of the foregoing evidence, we are constrained to conclude 

that the facts stated above, viewed in the light most favorable to the 

Commonwealth, amounted to enough evidence to establish a prima facie

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4

 At the April 16, 2014 hearing, the police officer testified that he recovered 

only $55.00 from Appellee’s person. N.T., 4/16/14, at 8.
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case of possession, possession with intent to deliver, and criminal 

conspiracy. Accordingly, we conclude the trial court erred when it denied 

the Commonwealth’s motion to refile the charges that were dismissed by the 

municipal court. Hence, the trial court’s order is reversed and the case is 

remanded for further proceedings consistent with this memorandum.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/13/2016