J-A23009-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

NICHOLAS CRUZ

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 358 EDA 2019

Appeal from the Order Entered January 4, 2019,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): MC-51-CR-0022212-2018.

BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED: DECEMBER 29, 2020

The Commonwealth appeals from the order dismissing the charges filed 

against Nicholas Cruz. We reverse and remand for further proceedings.

The trial court set forth the factual history as follows.

On August 28, 2018, at approximately 7:00 p.m., Officer 

[Robert] Filler and Officer Toribio conducted a vehicle 

investigation on a 1997 white Chevrolet, on the 2700 block of 6th 

Street, in the city and county of Philadelphia, due to an inoperable 

top brake light. . . . Cruz was the driver of the vehicle and was the 

sole occupant. When the officers pulled [Cruz] over, they 

conducted a check through the VIN number. . . . As a result, the 

vehicle came back with temporary tags from Delaware. [Cruz]

was not the registered owner of the vehicle and the tags were not 

in his name. 

As Officer Filler approached the passenger side with the 

passenger [window] down, he smelled fresh marijuana. At some 

point, [Cruz] said he was nervous because he smoked marijuana 

earlier that day. Still, the officers did not order [Cruz] out the 

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* Retired Senior Judge assigned to the Superior Court.
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vehicle. Although the officers smelled fresh marijuana, Officer 

Filler also testified that [Cruz] was 100% cooperative. There was 

no evasive or suspicious behavior from [Cruz] when the police 

pulled him over up until the end of the investigation. The officers 

saw an ankle bracelet on [Cruz’s] ankle and continued to ask 

[Cruz] questions about his whereabouts and the vehicle in 

question. Throughout the line of questioning, [Cruz] gave the 

officers a business card that identified the tire shop he worked for 

and explained to them that he was in the process of repair [of] 

the vehicle’s tire. The shop was down the street and was owned 

by [Cruz’s] stepfather. Finally, the officers decided to remove 

[Cruz] from the vehicle and placed him in the police car. On the 

passenger floorboard, the police officers found a closed black bag, 

containing a handgun and $13,000. Inside of the bag, the officers 

found a sales receipt for the handgun that was in someone other 

than [Cruz’s] name. In addition, Officer Filler testified that no 

personal effects of [Cruz’s] were found in the vehicle.

Trial Court Opinion, 7/30/19, at 1-2 (citations to the record omitted).

Following this incident, police arrested Cruz and charged him with 

violations of the Uniform Firearms Act (“VUFA”) under 18 Pa.C.S.A. §§ 6105, 

6106, and 6108. The matter proceeded to a preliminary hearing, which the 

magisterial district court conducted on October 3, 2018. At the conclusion of 

the hearing, the magisterial district court held that the Commonwealth had 

not presented sufficient evidence to establish a prima facie case, and 

dismissed the VUFA charges for lack of evidence.

The Commonwealth thereafter filed a motion in the Court of Common 

Pleas to refile the VUFA charges against Cruz, and also sought to amend the 

criminal complaint to include a possession of marijuana charge under 35 
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Pa.C.S.A. § 780-113(a)(31).

1 At the outset of the hearing, the trial court ruled 

that the complaint could be amended to include the drug possession charge. 

The Commonwealth then introduced Officer Filler’s body cam video (“BCV”) 

into evidence, which the court viewed during the hearing. At the conclusion 

of the hearing, the trial court denied the motion to refile. The Commonwealth 

filed a timely notice of appeal. Both the Commonwealth and the trial court 

complied with Pa.R.A.P. 1925. 

The Commonwealth raises the following issue for our review: “Did the 

court err in ruling that there was insufficient evidence for a prima facie case 

of three counts of violation of the Uniform Firearms Act and possession of 

marijuana?” Commonwealth Brief at 4 (statutory citations omitted).

Our Supreme Court has held that “it is settled that the evidentiary 

sufficiency, or lack thereof, of the Commonwealth’s prima facie case for a 

charged crime is a question of law as to which an appellate court’s review is 

plenary.” Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005) 

(citation omitted). 

At the preliminary hearing stage of a criminal prosecution, the 

Commonwealth’s burden is not to prove a defendant’s guilt beyond a 

reasonable doubt; rather, it is merely to put forth a prima facie case of the 

defendant’s guilt.” Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 

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1

Incident to the traffic stop, police arrested Cruz and conducted a search of 

his person, which revealed a small amount of marijuana. 
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2003). A prima facie case exists where the Commonwealth produces evidence 

to establish “each of the material elements of the crime charged and 

establishes sufficient probable cause to warrant the belief that the accused 

committed the offense.” Id. 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. Id. Inferences 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. Commonwealth v. Nieves, 876 A.2d 423, 

424 (Pa. Super. 2000). The weight and credibility of the evidence is not a 

factor at this stage. Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa. Super. 

2017).

A preliminary hearing is not a mini-trial, and a preliminary hearing judge 

is not a trier of fact. Thus, the trial court is afforded no discretion in 

ascertaining whether, as a matter of law and in light of the facts presented to 

it, the Commonwealth has carried its pretrial prima facie burden to make out 

the elements of a charged crime. Karetny, 880 A.2d at 513.

We turn first to the firearm charges. Here, the Commonwealth charged 

Cruz with VUFA offenses under 18 Pa.C.S.A. §§ 6105, 6106 and 6108. The 

elements of those offenses are as follows. A person is guilty of possessing a 

firearm by a prohibited person if he possesses a firearm after having been 

convicted of a crime rendering him ineligible to do so. See 18 Pa.C.S.A. § 
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6105. A person is guilty of carrying a firearm without a license if he carries a 

firearm in a vehicle without a valid and lawfully issued license. See id. at § 

6106(a)(1). A person is guilty of carrying a firearm in public if he carries a 

firearm at any time on a public street without a license to do so. See id. at § 

6108. 

When a firearm is not discovered on a defendant’s person, or in their 

actual possession, the Commonwealth may prove the defendant had 

constructive possession of the firearm.

Constructive possession is a legal fiction, a pragmatic 

construct to deal with the realities of criminal law enforcement. 

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. 

Commonwealth v. Hopkins, 67 A.3d 817, 820-21 (Pa. Super. 2013) 

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

(internal quotation marks and citation omitted)). “An intent to maintain a 

conscious dominion may be inferred from the totality of the circumstances, 

and circumstantial evidence may be used to establish a defendant’s 

possession of drugs or contraband.” Commonwealth v. Harvard, 64 A.3d 

690, 699 (Pa. Super. 2013) (citation omitted). Constructive possession cases 

are fact-sensitive; “a review of case law pertaining to constructive possession 

indicates the difficulty of drawing bright lines in this area of the law.” 

Commonwealth v. Stembridge, 579 A.2d 901, 904 (Pa. Super. 1990).
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Evidence that the defendant has been in a vehicle where a firearm is 

found is not sufficient by itself to prove constructive possession if the firearm 

is in a location over which the defendant lacks control or there is no evidence 

that the defendant knew that the firearm was there. See Commonwealth 

v. Armstead, 305 A.2d 1, 2 (Pa. 1973). At the least, the evidence must show 

that the defendant knew of the existence of the item. Commonwealth v. 

Hamm, 447 A.2d 960, 962 (Pa. Super. 1982). Individually, the circumstances 

may not be decisive; but, in combination, they may justify an inference that 

the accused had both the power to control and the intent to exercise that 

control, which is required to prove constructive possession. Commonwealth 

v. Carter, 450 A.2d 142, 144 (Pa. Super. 1982)

The Commonwealth argues that the trial court failed to view the 

evidence with all reasonable inferences in favor of the Commonwealth at the 

preliminary hearing stage, and explicitly and improperly made credibility 

determinations. The Commonwealth maintains that the evidence established 

that Cruz was the driver and sole occupant of the vehicle in which a bag, 

located on the floor just to the right of his leg and within his arm’s reach,

contained $13,000 and a gun. The Commonwealth argues that all of these 

factors, viewed together in the light most favorable to the Commonwealth, 

were at least sufficient to submit to a fact-finder at trial and, thus, to support 

a prima facie case of the VUFA charges.
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The Commonwealth further argues that Cruz’s intent to exercise 

conscious control and dominion of the firearm was further corroborated by his 

statements to police. The Commonwealth points out that, when initially asked 

by police why he was nervous, Cruz said it was because he had previously 

smoked marijuana. Commonwealth Brief at 14 (citing N.T., 10/3/18, at 6). 

However, once Officer Filler recovered the gun and the $13,000 in the black 

bag, he returned to the police car with the bag, handcuffed Cruz, and asked 

him, “that’s why you’re nervous, man?” Id. (citing BCV 9:48-10:12). Cruz

replied, “yea.” Id. Cruz also admitted to knowing that there was exactly 

$13,000 in the bag. Id. (citing N.T., 10/3/18, at 8). The Commonwealth 

maintains that Cruz’s admissions demonstrate both consciousness of guilt and 

knowledge of the bag’s contents. The Commonwealth argues that these 

incriminating statements support a prima facie case that the bag and its 

contents belonged to Cruz, and that he constructively possessed the firearm.

Finally, the Commonwealth asserts that the trial court erred by drawing 

speculative and defense-friendly inferences that Cruz simply was coming from 

work at the nearby garage that he and his stepfather owned when he was 

pulled over by police. The Commonwealth argues that by making inferences 

in favor of Cruz rather than in favor of the Commonwealth, at the preliminary 

hearing stage of the proceedings, the lower court committed reversible error.

In its Pa.R.A.P. 1925(a) opinion, the trial court considered the 

Commonwealth’s issue and concluded that it properly denied the motion to 
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refile charges because the Commonwealth failed to establish that Cruz had 

actual or constructive possession of the firearm, knowledge of the firearm in 

the bag, and an intent to exercise control over it. The trial court reasoned as 

follows.

Here, there are no personal effects that belong to [Cruz]

whatsoever. Moreover, there was no paperwork, on the record, 

to support a finding that the vehicle was registered to or 

purchased by [Cruz]. In fact, the Officer Filler testified that the 

car had temporary Delaware tags on it and [Cruz] was not found 

to be the registered owner of the vehicle. Additionally, . . . the 

handgun in this case, was concealed in a black bag on the 

passenger side. Although [Cruz] was the sole occupant in the 

vehicle, nothing on the record suggests that he exercised 

conscious dominion over the handgun. Inside the bag was a sales 

receipt for the handgun that was in someone other than [Cruz’s]

name. In our case, it can be inferred that [Cruz] was coming from 

work, at the shop that he and his stepfather owned, when he was 

pulled over by police for a Motor Vehicle Violation. The shop was 

about a block and a half from where [Cruz] was pulled over and 

[Cruz] stated he was getting the tire fixed. Therefore, [Cruz]

could not have had constructive possession of the handgun found 

in a closed bag on the passenger side of the vehicle.

* * * *

The Commonwealth [also] failed to show [Cruz] displayed a 

consciousness of guilt. While [Cruz] was the sole occupant of the 

vehicle, the record does not support that he had knowledge of the 

firearm or that he the intent to control it. . . . [Cruz] was 100% 

cooperative during the investigation and did not show any evasive 

behavior. This is in direct contrast with the defendant[] in 

[Commonwealth v. Cruz, 21 A.3d 1247 (Pa. Super. 2011)] . . ., 

where the police observed [the] defendant[] moving in the 

direction where the contraband was found.[2] Furthermore, 

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2

In Cruz, this Court concluded that the evidence was sufficient to establish 

that the defendant had constructive possession of a gun where he was the 

only person in the vehicle and the police officer observed him moving toward 
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[Cruz], in our case, did not use any evasive tactics such as 

avoiding being identified by the police, as the defendant did in 

Cruz, by given [sic] the officer four or five different names and 

dates of birth. In fact, [Cruz] in this present case gave the officers 

a business card that identified the shop he worked for and 

explained to them what he was doing prior to being stopped. . . 

. Moreover, [Cruz] did not attempt to flee the scene . . . Based 

on the totality of circumstances and viewing the evidence in light 

most favorable to the Commonwealth, there is insufficient 

evidence to show that the defendant had knowledge of the firearm 

in the bag and intent to exercise control over said firearm.

Trial Court Opinion, 7/30/19, at 5-6, 8-9 (footnote added).

3

As noted above, in order to determine whether the Commonwealth has 

put forth a prima facie case, the evidence must be read in the light most 

favorable to the Commonwealth’s case, and all inferences reasonably drawn 

from the evidence of record which would support a verdict of guilty are to be 

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where the gun was found (in a compartment on the passenger side of the 

vehicle). The defendant also gave the police officer multiple names and 

birthdates, thereby exhibiting a consciousness of guilt. See Cruz, 21 A.3d at 

1253.

3

In reaching its conclusion, the trial court relied on two non-precedential 

unpublished memorandum decisions by this Court; namely, Commonwealth 

v. Talbert, 121 A.3d 1117 (Pa. Super. 2015) (unpublished memorandum), 

and Commonwealth v. Perez, 159 A.3d 57 (Pa. Super. 2016) (unpublished 

memorandum). See Trial Court Opinion, 7/30/19, at 5-6, 8-9. While 

Pa.R.A.P. 126 was recently amended to permit trial courts and parties to cite 

non-precedential unpublished memorandum decisions of this Court for their 

persuasive value, the amendment pertains to decisions filed after May 1, 

2019. See Order Amending Rule 126 of the Pennsylvania Rules of Appellate 

Procedure, No 278 (Pa. 2019); see also 210 Pa. Code § 65.37. As the two 

non-precedential unpublished memorandum decisions relied on by the trial 

court were filed before May 2, 2019, they have no persuasive authority.
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given effect. Nieves, 876 A.2d at 424. Applying this standard, we observe 

the following based on our independent review of the record.

At the hearing on the motion to refile the charges against Cruz, the 

Commonwealth presented the notes of testimony from the preliminary 

hearing, which were incorporated into the trial court record. N.T., 1/4/19, at 

5. Notably, the preliminary hearing transcript established that, on the date in 

question, Cruz was the operator and sole occupant of the vehicle on a street 

in Philadelphia. N.T., 10/3/18, at 5. The vehicle had temporary Delaware 

tags on it. Id. at 9. Cruz told the officers that he “has a business and that 

they purchase cars.” Id. at 27. Cruz further indicated that the vehicle he was 

driving was a newly purchased vehicle, and that the car was part of the 

business. Id. at 27, 29. The officers ran the VIN number of the vehicle, and 

discovered that, although Cruz was not the registered owner of the vehicle, 

the vehicle was in temporary registration status. Id. at 8, 13. The VIN report 

that the officers received did not indicate who applied for the temporary 

registration status. Id. at 8, 13. 

When Officer Filler approached the vehicle, he smelled fresh marijuana. 

Id. at 6, 15. A small black bag, described as a “fanny pack,” was located on

the front floorboard, approximately one foot away from Cruz’s right leg, in the 

direction of the front passenger side of the vehicle. Id. at 7-8, 17, 18. Cruz 

told the officers that the bag contained $13,000. Id. at 8. The bag contained 

exactly $13,000 in cash and a firearm. Id. at 6. Cruz did not have a license 
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to carry the firearm. Id. at 8. The Commonwealth also introduced Cruz’s 

criminal record, which reflected that he had a prior conviction which made him 

ineligible to possess a firearm. Id. at 31.

At the refile hearing, the Commonwealth also introduced a body camera 

video of the traffic stop. N.T., 1/4/19, at 13. The video begins as the officers 

approached Cruz’s vehicle, which Cruz had pulled over in the entrance to a 

tire lot. See BCV, 8/28/18, at 00:01. In the video, Cruz told the officers that 

he purchased the vehicle in Delaware. Id. at 8:14. Cruz further indicated 

that he temporarily registered the vehicle, and was waiting for a stamp. Id. 

at 10:30. Cruz additionally told the officers that he obtained insurance for the 

vehicle. Id. at 10:50.

Cruz further explained that the vehicle had a “cracked” and “dry rotted” 

front tire, and that he was coming from his nearby body shop to get the tire 

changed. Id. at 8:42; 10:03; 11:03; 11:08. Cruz indicated that, due to the 

condition of the tire, he had to fill the tire with air each morning. Id. at 11:11. 

Cruz told police that he was nervous, and police observed that Cruz was 

extremely nervous. Id. at 13:16. When asked by police why he was so 

nervous, Cruz initially indicated that it was because he smoked a blunt earlier 

in the day. Id. After Officer Filler placed Cruz in the back of the police Cruiser, 

he went back to the vehicle and, while standing outside the driver’s side of 

the vehicle, reached over the driver’s seat and picked up the black bag. Id. 

at 14:32. When Officer Filler opened the bag, he found the gun and the
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$13,000 in cash. Id. Officer Filler returned to the police cruiser with the bag

and asked Cruz if the bag was the cause of his nervousness. Id. at 17:31. 

Cruz responded in the affirmative. Id. 

Our review of the evidence produced at the hearings, viewed in the light 

most favorable to the Commonwealth and accepted as true at this juncture, 

leads us to conclude that the Commonwealth presented sufficient evidence to 

establish a prima facie case as to the VUFA charges filed against Cruz. 

Cruz was the driver and sole occupant of the vehicle where the firearm 

was found. Cruz told police that he purchased the vehicle, obtained insurance 

for the vehicle, and that he was waiting for the registration process to be 

completed. Police confirmed that the ownership of the vehicle was in a 

temporary status, but did not have access to information regarding the 

identity of the individual who applied for temporary ownership status. Cruz 

told officers that the vehicle had a damaged tire which he had to fill up with 

air every morning. These facts support an inference that Cruz, in fact, owned 

or at least maintained control over the vehicle.

The evidence also supported an inference that Cruz had knowledge of 

the firearm located in the car. Cruz told police that the bag contained $13,000 

in cash. Police confirmed that the bag contained exactly $13,000 in cash. 

Based on Cruz’s knowledge of the exact amount of currency located within the 

bag, the Commonwealth was entitled to an inference that Cruz owned or 
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possessed the bag, and that he had knowledge of the other contents of the 

bag, including the firearm.

Further, the evidence supported an inference that Cruz exercised control 

over the firearm. The firearm was positioned near Cruz’s feet, making it easily 

within his reach. Where contraband has been found within the reach of a 

defendant, as it was here, our Court has concluded that there was sufficient 

evidence to find constructive possession. See Commonwealth v. Samuels, 

340 A.2d 880 (Pa. Super. 1975); see also Commonwealth v. Ferguson, 

331 A.2d 856 (Pa. Super. 1974) (holding that the location of contraband in an 

area usually accessible only to a defendant may lead to the inference that he 

placed it there or knew of its presence if others did so); Commonwealth v. 

Kirkland, 831 A.2d 607 (Pa. Super. 2003) (holding sufficient evidence 

established defendant’s constructive possession of contraband found in 

vehicle; even though defendant did not own vehicle and arresting officers did 

not see defendant in vehicle, where defendant’s wife told officers defendant 

had arrived in vehicle, defendant possessed keys to vehicle, and contraband 

was located in area defendant could access). 

Finally, Cruz’s demeanor during the stop supports an inference that he 

constructively possessed the firearm. Cruz was visibly nervous, and ultimately 

attributed the cause of his nervousness to the contents of the bag. These 

facts suggest consciousness of guilt. See Commonwealth v. Hughes, 865 

A.2d 761, 792 (Pa. 2004) (holding that “[t]he conduct of an accused following 
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a crime, including ‘manifestations of mental distress,’ is admissible as tending 

to show guilt”) (quoting, in part, Commonwealth v. Homeyer, 94 A.2d 743, 

747 (Pa. 1953) (holding that “mental distress, fear at the time of or just before 

or just after discovery of the crime” are indicators of guilt)); see also 

Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011); 

Commonwealth v. Donelly, 653 A.2d 35, 37 (Pa. Super. 1995). 

Under the totality of these circumstances, viewed in the light most 

favorable to the Commonwealth and accepted as true at the preliminary 

hearing stage of the proceedings, we conclude that the Commonwealth 

presented sufficient evidence to establish a prima facie case as to the VUFA 

charges filed against Cruz. 

We further conclude that, in arriving at its determination, the trial court 

failed to view the evidence in the light most favorable to the Commonwealth, 

and instead, viewed the evidence and all reasonable inferences therefrom in 

favor of Cruz.4 The trial court also considered matters wholly irrelevant to 

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4 For example, the absence of documentation establishing that Cruz was the 

registered owner of the vehicle on the date of the traffic stop, and the absence 

of Cruz’s personal effects in the vehicle (i.e., bills, mail) should not have been 

viewed in the light most favorable to Cruz, particularly where Cruz repeatedly 

indicated to police that he owned and insured the vehicle, and that it was 

temporarily registered to him. 
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the charges in question.5 Accordingly, we conclude that the trial court erred 

in denying the Commonwealth’s request to refile the VUFA charges.

We turn next to the Commonwealth’s claim that the trial court erred in 

denying its motion to refile the drug possession charge against Cruz. 

Relevantly, a person is guilty of possessing a small amount of marijuana if he 

possesses thirty grams or less of marijuana for personal use. See 35 P.S. § 

780-113(a)(31).

At the refile hearing, the Commonwealth established that a search of 

Cruz’s person incident to his arrest revealed a bag of marijuana on his person. 

N.T., 1/4/19, at 11-12. The parties stipulated that the amount of marijuana 

was approximately one gram. See id. at 13.

The Commonwealth contends that the trial court erred in denying the 

motion to refile with respect to the drug possession charge on the basis that 

the court failed to conduct a prima facie analysis, and instead focused on

theoretical and premature suppression issues. According to the 

Commonwealth, the trial court appeared to conclude that the search of the 

vehicle was impermissible under our Supreme Court’s plurality decision in 

Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (adopting the federal 

automobile exception to the warrant requirement and permitting officers to 

____________________________________________

5 For example, whether Cruz was the owner of the firearm was irrelevant, as 

he was charged with VUFA offenses related to possession of a firearm, not 

ownership. Further, where Cruz was coming from or going to was also 

irrelevant to the VUFA charges in question.
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search a vehicle when there is probable cause to do so). The Commonwealth 

argues that such a legal analysis is irrelevant to the sufficiency of a prima facie

case at a preliminary hearing because a defendant can later move for 

suppression in a motion before the trial court. The Commonwealth asserts 

that a preliminary hearing court may not simply exclude certain evidence from

the prima facie record by speculating about its future admissibility.

Finally, the Commonwealth contends that the trial court improperly 

made a credibility finding when it concluded that Officer Filler could not have 

reasonably smelled fresh marijuana emanating from Cruz’s vehicle based on 

the small amount of marijuana that was sealed in a plastic bag. The 

Commonwealth asserts that the trial court committed reversible error by 

making a credibility determination at the preliminary hearing stage. According 

to the Commonwealth, because police recovered the marijuana from Cruz’s

person after his arrest, the Commonwealth established a prima facie case for 

his actual possession of marijuana.

The trial court undertook an extensive explanation of the factual and 

legal underpinnings at issue in Gary. The court then provided the following 

analysis.

Here, when the police officers smelled marijuana emanating 

from the vehicle, they did not immediately conduct a search. 

Instead, the police officers went on a fishing expedition in 

attempts to elicit possible criminal statements. They continued to 

ask [Cruz] questions about his whereabouts, and therefore, did 

not base their arrest on the smell alone. The police officers went 

beyond the scope of Gary and should not have continued to 

question [Cruz]. Furthermore, it was not until after numerous 
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preliminary hearings that the Commonwealth decided to amend 

[Cruz’s] charges to include possession of marijuana. It is also 

crucial to note that the amount of marijuana recovered was 

approximately one gram, sealed in a sandwich bag. To state that 

[Officer Filler] could smell one gram of marijuana emanating from 

outside the vehicle, calls to question the credibility of the officer.

Therefore, this Court finds that [Cruz] cannot be held for the 

charge of possession.

Trial Court Opinion, 7/30/19, at 10.

 

As noted above, at the preliminary hearing stage of criminal 

proceedings, the question is not whether there is sufficient admissible

evidence to prove the defendant guilty beyond a reasonable doubt; rather, 

the question is whether the prosecution must be dismissed because there is 

nothing to indicate that the defendant is connected with a crime. See 

Commonwealth v. Rick, 366 A.2d 302, 303-04 (Pa. Super. 1976). This 

Court has further held that:

[I]n light of the critical nature of the preliminary hearing in 

assuring that the Commonwealth has a legal basis for prosecuting 

a person, the better course may be for the Commonwealth, 

whenever possible, to produce evidence to establish its prima facie

case that would also be admissible at trial. However, there is no 

requirement that the Commonwealth do so in all instances. 

See Commonwealth v. Troop, 571 A.2d 1084, 1088 (Pa. Super. 1990); see 

also Commonwealth v. Wojdak, 466 A.2d 991, 995 (Pa. 1983) (holding 

that the prima facie standard does not require that the Commonwealth prove 

the elements of the crime beyond a reasonable doubt nor that evidence is 

available that would prove each element at trial beyond a reasonable doubt). 
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Moreover, our Rules of Criminal Procedure contemplate that suppression 

issues are to be addressed after the preliminary hearing stage of the 

proceedings. Rule 578 provides that all pretrial requests for relief shall be 

included in one omnibus pretrial motion, and identifies a motion to suppress 

as a type of relief appropriate for the omnibus pretrial motion. See

Pa.R.Crim.P. 578. Rule 579 provides that “the omnibus pretrial motion for 

relief shall be filed and served within 30 days after arraignment, unless 

opportunity therefor did not exist, or the defendant or defense attorney, or 

the attorney for the Commonwealth, was not aware of the grounds for the 

motion.” Pa.R.Crim.P. 579(A) (emphasis added).

Here, if Cruz believed that the officers did not have probable cause to 

arrest him and search his vehicle, he could have filed a motion to suppress on 

that basis after the charges had been bound over for court. It was not the 

role of the trial court, on a motion to refile charges, to determine suppression 

issues at the preliminary hearing phase of the proceedings.

Further, as we have explained, the weight and credibility of the evidence 

is not a factor at the preliminary hearing stage. Hilliard, 172 A.3d at 10. 

Thus, the trial court had no discretion in ascertaining whether Officer Filler’s 

testimony regarding his ability to smell fresh marijuana upon approaching 

Cruz’s vehicle was credible. Karetny, 880 A.2d at 513. 
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For these reasons, we conclude that the trial court committed reversible 

error in denying the Commonwealth’s motion to refile the charge of possession 

of a small amount of marijuana. 

Based on the foregoing, we reverse the order of the trial court, and 

remand for further proceedings consistent with this memorandum. 

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/20