J-A13004-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

PAUL REED

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1611 EDA 2021

Appeal from the Order Entered July 8, 2021

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

No(s): CP-51-CR-0001192-2021

BEFORE: OLSON, J., DUBOW, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED AUGUST 9, 2022

The Commonwealth of Pennsylvania appeals from an order entered on 

July 8, 2021, which granted Paul Reed’s (Mr. Reed or Appellee) motion to 

quash all counts of a criminal information filed against him. Herein, the 

Commonwealth contends that the trial court erred in its determination that it 

failed to establish a prima facie showing that Mr. Reed constructively 

possessed certain firearms recovered from a vehicle he occupied with two 

other individuals. After careful review, we affirm the order quashing the 

charges against Mr. Reed.

On November 22, 2020, a criminal complaint filed against Mr. Reed 

alleged multiple violations of the Uniform Firearms Act, including persons not 

to possess, use, manufacture, control, sell or transfer firearms, firearms not 

to be carried without a license, carrying firearms on public streets or public 
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property in Philadelphia, and possession of firearm with altered 

manufacturer’s number, along with criminal conspiracy.1

A preliminary hearing was held on March 4, 2021, before the Honorable 

Wendy L. Pew. Officer Jessie West of the Philadelphia Police Department 

testified that on November 21, 2020 at approximately 1:00 p.m. in West 

Philadelphia, she and her partner initiated a traffic stop of a vehicle with an 

improperly tinted front windshield. N.T. Preliminary Hearing, 3/4/21, at 5-6. 

Three men occupied the vehicle: the driver, a passenger in the front passenger 

seat, and Mr. Reed in the back seat on the passenger’s side. Id. at 6. Officer 

West asked the occupants for their identification, at which time all men 

complied. Id. Officer West explained that after running the men’s 

information, she questioned Mr. Reed regarding a “cooler bag” sitting next to 

him in the back seat of the vehicle:

I first spoke to the rear passenger[, Mr. Reed]. I asked him - -

there was a cooler bag to his left in like where the center seat 

would be in the rear of the car. I couldn’t see what was in the 

bag. There was like a jacket or something on top of it. I asked 

[Mr. Reed] what was in the bag. He didn’t answer, but he just 

moved - - he moved the bag slightly and then moved one of the 

sweatshirts from all of it, but I still couldn’t see what was in the 

bag.

Id. at 7-8. Officer West further explained:

He didn’t pick up the bag. He slightly moved it. And then he [ ] 

took – like, there was a jacket or a sweatshirt or something off of 

the bag and kind of moved it over. But there were still other 

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1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6110.2, and 903, respectively.
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things on top of the bag, so I still couldn’t see what was inside of 

it.

Id. at 22.

After this exchange, Officer West and other assisting officers removed 

the three men from the vehicle, placed them in handcuffs, secured them within 

separate police cars, and proceeded to conduct a search of the car. Id. at 8, 

10. Officers found loaded firearms on the driver’s person and under the front 

passenger’s seat. Id. Officer West testified that she removed jackets from 

on top of the zipped cooler bag and found two more firearms inside – one 

loaded and another unloaded and within a gun case – beneath more clothing. 

Id. at 10-11. She did not find anything explicitly belonging to Mr. Reed inside 

the vehicle or cooler bag. Id. at 22-23. Neither Mr. Reed nor any of the other 

occupants of the vehicle possessed a license to carry firearms. Id. at 11.

At the conclusion of Officer West’s testimony, defense counsel stipulated 

that Mr. Reed’s prior record disqualified him from possessing firearms. Id. at 

29. After brief argument, the lower court dismissed the charge for possession 

of a firearm with altered manufacturer’s number for lack of evidence but 

otherwise bound the remaining charges of Mr. Reed’s case over to the Court 

of Common Pleas of Philadelphia County. Id. at 30.

On April 13, 2021, Mr. Reed, through counsel, filed a motion to quash 

the criminal information filed against him, arguing that the Commonwealth 

failed to produce evidence that Mr. Reed constructively possessed the firearms 

found within the cooler bag. See Motion to Quash, 4/13/21, at 2-3 
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(unpaginated). Mr. Reed asserted that the Commonwealth only connected 

Mr. Reed and the firearms via his presence next to the bag. Id. at 2. He 

further claimed the Commonwealth failed to link him to the firearms through 

ownership of the vehicle, bag, or other items, or through any forensic evidence 

such as DNA or fingerprints. Id. at 3. Consequently, Mr. Reed argued, the 

record as established at the preliminary hearing lacked direct and 

circumstantial evidence from which it could be inferred that Mr. Reed actually 

or constructively possessed the firearms recovered from the vehicle; thus, the 

charges against him could not stand. Id. After a hearing held on July 8, 

2021, the trial court granted the motion to quash. See N.T. Motion Hearing, 

7/8/21, at 10; see also Trial Court Order, 7/8/21 (quashing all charges). This 

appeal by the Commonwealth followed.2, 3

The Commonwealth raises the following issue on appeal:

Did sufficient evidence support a prima facie case for the [firearms 

and conspiracy charges] where [Mr. Reed] was in the back seat of 

a car sitting directly next to a bag containing two firearms, he 

moved the bag and refused to answer when a law enforcement 

officer asked him what was inside the bag, and the driver and a 

second passenger had their own guns?

Commonwealth’s Brief at 4.4

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2 Both the Commonwealth and trial court complied with Pa.R.A.P. 1925.

3 Mr. Reed did not file an appellate brief in this matter. 

4 Although the Commonwealth’s stated issue raises a sufficiency of the 

evidence claim as to the conspiracy charge, the argument section of the 

(Footnote Continued Next Page)
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We previously explained:

It is well-settled that the evidentiary sufficiency of the 

Commonwealth’s prima facie case is a question of law to which 

this Court’s review is plenary. The trial court is afforded no 

discretion in deciding whether, as a matter of law and in light of 

the facts presented to it, the Commonwealth has carried its 

burden to make out the elements of a charged crime. 

* * *

[A]t the preliminary hearing stage of a criminal prosecution, the 

Commonwealth need not prove the defendant’s guilty beyond a 

reasonable doubt, but rather, must merely put forth sufficient 

evidence to establish a prima facie case of guilt. A prima facie

case exists when the Commonwealth produces evidence of each 

of the material elements of the crime charged and establishes 

probable cause to warrant the belief that the accused committed 

the offense. Furthermore, 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 be decided by the jury.

Weight and credibility of evidence are not factors at the 

preliminary hearing stage. All evidence must be read in the light 

most favorable to the Commonwealth, and inferences reasonably 

drawn therefrom which would support a verdict of guilty are to be 

given effect. Courts must employ a “more-likely-than-not” test to 

assess the reasonableness of inferences relied upon. Anything 

less amounts only to suspicion or conjecture. Our Supreme Court 

recently reminded that the prima facie showing is a low threshold 

for the Commonwealth to surpass.

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Commonwealth’s brief only addresses the dismissal of the firearms charges. 

Therefore, the Commonwealth waived any challenge to the quashal of the 

criminal conspiracy charge by failing to develop or preserve this argument 

before the trial court or within its appellate brief before this Court. See 

Commonwealth v. Reid, 235 A.3d 1124, 1191 n.35 (Pa. 2020), citing 

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“where an 

appellate brief fails to provide any discussion of a claim with citation to 

relevant authority or fails to develop the issue in any other meaningful fashion 

capable of review, that claim is waived”). 
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Commonwealth v. Munson, 261 A.3d 530, 540 (Pa. Super. 2021) (citations 

omitted). 

The Commonwealth charged Mr. Reed with various firearms violations,

all of which, relevant to the present appeal, require the Commonwealth to 

prove that he possessed a firearm. See 18 Pa.C.S.A. §§ 6105(a)(1), 

6106(a)(1), and 6108, respectively.5 It is undisputed that Mr. Reed did not 

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5

In pertinent part, the crimes are defined as follows:

§ 6105. Persons not to possess, use, manufacture, control, 

sell or transfer firearms

(a) Offense defined. –

(1) A person who has been convicted of an offense 

enumerated in subsection (b), within or without this 

Commonwealth, regardless of the length of sentence or 

whose conduct meets the criteria in subsection (c), shall not 

possess, use, control, sell, transfer or manufacture or obtain 

a license to possess, use, control, sell, transfer or 

manufacture a firearm in this Commonwealth.

§ 6106. Firearms not to be carried without a license

(a) Offense defined. –

(1) Except as provided in paragraph (2) [unrelated to the 

circumstances here], 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.

§ 6108. Carrying firearms on public streets or public 

property in Philadelphia 

(Footnote Continued Next Page)
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have actual possession of the firearm, i.e., it was not found on his person; 

thus, the Commonwealth needed to establish that he constructively possessed 

a firearm to establish a prima facie case for each charge. Commonwealth 

v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013). Constructive possession is 

“an inference arising from a set of facts that possession of the contraband was 

more likely than not.” Commonwealth v. McClellan, 178 A.3d 874 (Pa. 

Super. 2018).

Constructive possession is a legal fiction, a pragmatic construct to 

deal with the realities of criminal law enforcement. 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. To aid application, we have 

held that constructive possession may be established by the 

totality of the circumstances.

It is well established that, as with any other element of a crime, 

constructive possession may be proved 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. [ A] defendant’s mere presence at a place where 

contraband is found or secreted is insufficient, standing alone, to 

prove that he exercised dominion and control over those items. 

Thus, the location and proximity of an actor to the contraband 

alone is not conclusive of guilt. Rather, knowledge of the 

existence and location of the contraband is a necessary 

prerequisite to proving the defendant’s intent to control, and, 

thus, his constructive possession.

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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 [except where the person is licensed to carry or 

exempt from licensing.]

18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108.
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If the only inference that the fact finder can make from the facts 

is a suspicion of possession, the Commonwealth has failed to 

prove constructive possession. It is well settled that facts giving 

rise to mere association, suspicion[,] or conjecture, will not make 

out a case of constructive possession.

Commonwealth v. Parrish, 191 A.3d 31, 36-37 (Pa. Super. 2018), appeal 

denied 202 A.3d 42 (Pa. 2019) (citation and quotation omitted; formatting 

altered). Knowledge of the existence and location of a firearm may not be 

inferred from the mere fact that it was hidden within an automobile. 

Commonwealth v. Hamm, 447 A.2d 960, 962 (Pa. Super. 1982). 

The Commonwealth argues that, when viewed in the light most 

favorable to the Commonwealth, including all reasonable inferences 

therefrom, the evidence adduced at the preliminary hearing supported a 

reasonable inference that Mr. Reed constructively possessed the firearms 

contained within the bag located next to him in the vehicle. See 

Commonwealth’s Brief at 11. The Commonwealth asserts that the trial court 

did not view the evidence under this standard, but rather, made improper 

weight and factual determinations. Id. at 9. In support of its argument, the 

Commonwealth contends that the evidence showed that the other occupants 

of the vehicle exclusively possessed the other two firearms recovered from

the vehicle, thus a fact finder could reasonably infer that Mr. Reed, as the only 

occupant of the vehicle without a firearm on his person or under his seat, was 

in control of the bag containing the remaining firearms. Id. at 12. 

Additionally, the Commonwealth posits that Mr. Reed’s movements toward the 
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cooler bag in response to Officer West’s inquiries suggest an attempt to 

conceal the bag and its contents, which demonstrates a consciousness of guilt

as well as a capacity and intent to exercise dominion and control over the 

contraband. Id. at 11. Thus, the Commonwealth reasons, “[w]hen viewed in 

its totality, the evidence would support a reasonable inference that [Mr. Reed] 

had the power to exercise control of the guns in the bag, which was next to 

him alone and which he attempted to conceal from police.” Id. at 12.

The trial court concluded that the Commonwealth did not meet the 

prima facie standard necessary to sustain the charges against Mr. Reed 

because it presented insufficient evidence of Mr. Reed’s constructive 

possession of the firearms in the bag. Trial Court Opinion, 10/7/21, at 2. In 

addressing this issue, the trial court opined:

[T]he Commonwealth relies solely on the fact that [Mr. Reed] was 

sitting next to the closed bag containing firearms, and that he 

placed his sweatshirt on top of the bag when the officer asked 

about its contents. In reviewing the totality of the circumstances, 

[the trial court] finds those facts insufficient to prove constructive 

possession. No evidence was presented to indicate that [Mr. 

Reed] owned the bag or the clothing on top of the bag, and no 

forensic evidence was presented to link [Mr. Reed] to the firearms. 

[Mr. Reed] only made movements toward the bag after an officer 

asked about the bag. No forensic evidence was submitted linking 

[Mr. Reed] to the firearms or the bag. Moreover, other passengers 

in the vehicle readily admitted to possessing firearms when asked.

Id. at 3.

Following our review of the evidence, we conclude the Commonwealth 

failed to demonstrate Mr. Reed’s constructive possession of the firearms 

contained within the cooler bag. It is undisputed that Mr. Reed was neither 
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the owner nor operator of the vehicle. Nothing on top of or within the cooler 

bag was identified as Mr. Reed’s. Moreover, the trial court found that the 

Commonwealth presented no evidence indicating that Mr. Reed knew the 

contents of the cooler bag, that Appellant intended to exercise control over 

the firearms found therein, or that Appellant’s DNA or fingerprints were found 

on the firearms. The only facts adduced at the preliminary hearing suggest 

that Mr. Reed simply sat next to a cooler bag in another individual’s car, and 

“slightly moved” the cooler bag – without picking it up – and moved “a 

sweatshirt or something off of the bag” in response to Officer West’s 

questions about the contents thereof. N.T. Preliminary Hearing, 3/4/21, at 22

(emphasis added); see Commonwealth v. Townsend,237 A.2d 192, 195 

(Pa. 1968) (rejecting theory of constructive possession where defendant 

cooperated with officers and no evidence suggested that the defendant knew 

of the weapon’s presence in the vehicle), Commonwealth v. Boatwright, 

453 A.2d 1058, 1059 (Pa. Super. 1982) (per curiam) (concluding that, in the 

context of firearms recovered from a vehicle occupied by multiple individuals, 

there was insufficient evidence of constructive possession where the only 

evidence was mere presence and officer’s testimony that the defendant made 

a movement toward the area of the vehicle where a firearm was later found). 

We are unpersuaded by the Commonwealth’s suggestion that Mr. Reed’s 

constructive possession of the firearms within the cooler bag may be inferred 

by the other vehicle occupants’ possession of other firearms within the vehicle 
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and Mr. Reed’s movements toward the cooler bag because that evidence, and 

the reasonable inferences which may be drawn therefrom, are equally 

consistent with innocence and guilt. See Interest of J.B., 189 A.3d 390, 415 

(Pa. 2018) (where the evidence and reasonable inferences therefrom are 

equally consistent with innocence as it is with guilt, the Commonwealth has 

not sustained its burden) Commonwealth v. Davis, 458 A.2d 248, 250 (Pa. 

Super. 1983) (same). The possession of other firearms recovered from the 

vehicle does not make it more or less likely that Mr. Reed possessed the 

firearms within the cooler bag.

6

 Regarding Mr. Reed’s actions, Officer West

testified that Mr. Reed moved the bag only after she asked what was inside of 

it, he did not pick the bag up but rather “slightly moved” it, and he shifted a 

sweatshirt off of the bag all in response to her question. See N.T. 

Preliminary Hearing, 3/4/21, at 7-8 and 22. Even viewed in the light most 

favorable to the Commonwealth, such evidence is insufficient as it is equally, 

or more consistent with an innocent, albeit physical rather than verbal, 

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6 Contrary to the Commonwealth’s contention, the presence of other vehicle 

occupants militates against inferring that Mr. Reed constructively possessed 

the firearms found within the cooler bag. See Commonwealth v. Heidler, 

741 A.2d 213, 216 (Pa. Super. 1999) (en banc) (“where another person has 

equal access to the area where illegal contraband or weapon is found, the 

defendant cannot be said to have either the power to control or the intent to 

control such contraband or a weapon per se.”); see also Boatwright, 453 

A.2d at 1059 (holding that, where a firearm was not found on a defendant’s 

person, he could properly be convicted only if the Commonwealth proved joint 

constructive possession with the other occupants of the vehicle). Here, the 

Commonwealth proffers no theory of joint constructive possession, and its 

arguments, as framed, nullify such a proposition.
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response to Officer West’s question, as it is with potential concealment of the 

contents.

Simply stated, the Commonwealth did not present sufficient evidence 

from which a jury could reasonably infer that Mr. Reed exercised dominion 

and control over the firearms within the cooler bag. Consequently, the 

Commonwealth did not establish a prima facie case that Mr. Reed 

constructively possessed those firearms, and the trial court correctly quashed

the charges against Mr. Reed. 

Order affirmed.

Judge Dubow joins this Memorandum.

Judge King notes dissent.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/9/2022